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Constructive dismissal: subjective or objective?

Peter McDermott

Constructive dismissal is a peculiar phenomenon during which an employee's resignation is judged according to substantive and procedural fairness parameters as if it were a dismissal. It's unique in that the employee must prove a continued employment relationship was made intolerable by the employer, leaving them no choice but to resign. But is this standard of proof subjective or objective?

The landmark case of Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC) explained that the employer's conduct must cause the employee to resign.

This, naturally, requires an examination into the employee's state of mind. However, there is undeniably a subjective component to the test for constructive dismissal:

  • Did the employee truly feel that the conduct of the employer left him or her with no option but to resign?

In the 2001 information sheet published by the CCMA, the CCMA quotes - with approval - the case of Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC) (which is an authority also quoted in the Loots case) but the CCMA seems to suggest a different approach.

The CCMA information sheet deals with the burden of proof:

  • It states that the onus lies on the employee to show, subjectively, that he or she experienced the employer's actions as having rendered the employment relationship intolerable.
  • Once the employee has satisfied this requirement, the CCMA says that the burden of proof shifts to the employer to show, objectively, that the employee's reaction was unwarranted.

If this approach is followed, the burden of proof on the employee would be miniscule when compared to that imposed on the employer. In addition, the employer would have to prove that it hadn't acted in a way calculated to do harm to the employment relationship. This is unreasonably hard to do under the best of circumstances.

Then, in Watt & Honeydew Dairies (Pty) Ltd (2003) 24 ILJ 466 the CCMA clarifies:

  • "the test is objective and therefore the subjective perceptions of the employee are not relevant in this regard."

This doesn't, however, address the issue of if this objective standard applies only to the employer after the employer has discharged its burden of proof.

In this regard, Claasen and Du Toit write that "[t]o succeed in the claim that the employee was constructively dismissed, the employee has to show that objectively assessed, the conditions at the workplace were so intolerable that he or she had no other option but to terminate the employment relationship." (SA Labour Guide)

If accepted, this statement entails that the:

  • Entire (and objective) onus of proof lies with the employee, and
  • Only burden on the employer – if it chooses to do so – would be to place counterweight on the scales of probability to balance the evidence (if any) submitted by the employee.

This seems to be in line with the statistically poor success rate of referrals for constructive dismissal.

The test for constructive dismissal is objective and subjective

It may safely be concluded that the test for constructive dismissal is not only objective but that the onus is on the employee to prove it. Such onus doesn't shift to the employer when a certain level of evidence has been presented.

This shouldn't be taken to mean that a referral for constructive dismissal is a laughing matter or can't be proved:

  • The CCMA has, as recently as 2007, awarded a constructively dismissed employee the maximum compensation of twelve months' worth of salary.

Be careful in dealing with employees who may feel victimised or who file formal grievances as these are prime candidates for constructive dismissal referrals.

Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions