The Opportunist & Constructive Dismissal – What is the Breaking Point?

Employees are increasingly lodging unjustified grievances or resigning from their employment in order to divert attention from their own poor performance or unbecoming conduct. Unfortunately the convenience of playing the victim, in many instances, triumphs over taking either accountability or responsibility for one’s duties as an employee. This of course often leads to an allegation of constructive dismissal, which inevitably lands the employer in the hot seat at the CCMA.

Written By of Cowan-Harper-Madikizela Attorneys

In the recent case of Celestine Bosch v JDG Group (Pty) Ltd (JR578/14) (21 July 2021) the Labour Court grappled with the issue of constructive dismissal and specifically the test to be applied. In this case, the employee, a branch manager, who had been employed by the employer for some six years resigned and thereafter alleged that she had been constructively dismissed.

Although the dispute between the employee and her line manager had a prolonged history, in summary, the employee alleged that her line manager was rude, sarcastic, aggressive and abusive which made her continued employment intolerable. The line manager, in turn, attributed the disgruntled employee’s complaints to inter alia the employee’s poor performance and her unjustified need to receive constant positive reinforcement.

The employee lodged numerous complaints and a formal grievance against her line manager, the last of which had been lodged shortly after performance counselling had taken place. The employer nevertheless again attempted to resolve the issues, this time by way of a formal grievance hearing. During the grievance hearing, the line manager apologized that the employee felt that she had been mistreated and attempted to salvage the working relationship. The employee however refused to accept the line manager’s apology and resigned the following day.

The Labour Court confirmed that the question of whether or not a constructive dismissal has occurred is a jurisdictional fact that must be determined objectively. Accordingly in circumstances where no constructive dismissal has taken place, the CCMA lacks the necessary jurisdiction to entertain the dispute. Any review of such a matter accordingly does not concern itself with the reasonableness of the outcome but requires the Labour Court to determine the issue de novo.

It is well established that for constructive dismissal to take place the following three requirements must be met, namely (1) the employee must have terminated her employment (2) the reason for the termination must be that the continued employment had become intolerable (3) It must have been the employer who had made continued employment intolerable.

In determining the current matter it was not lost on the Labour Court that all three complaints lodged by the employee were made in direct correlation to the employee not achieving the required performance standards and being subjected to some sort of counselling. It also appeared that some of the complaints were opportunistically lodged by the employee, presumably pre-empting further performance management. In the circumstances, it was clear that the employee’s complaints constituted no more than a veiled attempt to conceal her inadequate performance.

In relation to the test to be applied the Labour Court concluded that “… intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonizing circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to the breaking point”. In the current circumstances, the Labour Court found that the employee had failed to prove constructive dismissal.

As much as employees are entitled to a safe working environment and the right to be treated with dignity and respect, opportunism must neither be overlooked nor condoned by employers. Fortunately, the threshold to prove a constructive dismissal is justifiably high in order to prevent abuse by such employees and requires far more than an unpleasant or stressful working environment. Employees must thus exhaust all reasonable alternatives prior to resigning and should refrain from dealing with incompatibility, misconduct or incapacity under the guise of constructive dismissal.

Tanya Mulligan

Tanya Mulligan
Executive in Employment

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