"Horrible bosses" make employment intolerable.

A case of constructive dismissal

The Labour Court was recently asked to review and set aside a commissioner’s finding that the resignation of two employees constituted constructive dismissal. In the Centre for Autism Research and Education v Commission for Conciliation Mediation and Arbitration and Others (Case No.: JR 1619/2018), Van Niekerk J found that the employer had made employment so intolerable for the employees that they had no option but to terminate their employment, and dismissed the review application.

This is a case involving workplace bullying, which Professor Alan Rycroft describes as a form of harassment and “…any unfavourable or offensive conduct on the part of a person or persons, which has the effect of creating a hostile working environment…in these terms, bullying includes a wide range of insulting, demeaning or intimidating behaviour that lowers the self-esteem or self-confidence of an employee.” (‘Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour Practice’ (2009) 30 ILJ 1431).

The two employees of the Centre for Autism Research and Education, an independent school for learners affected by autism spectrum disorder, resigned from the organisation after having endured multiple incidents of bullying from their employer including:

“Unauthorized and/or unlawful deductions from the applicants’ salaries, imposing unreasonable and in some instances unlawful demands on the applicants, use of abusive and offensive language when dealing with the applicants, sexual innuendos, sexual harassment, sexual orientation discrimination, making of disparaging and derogatory remarks, undermining and belittling the applicants, embarrassing and humiliating conduct towards both applicants, and impairment of the applicants’ constitutional right to dignity. This conduct was in front of the respective applicants’ and/or their work colleagues and/or in public places.”

Based on this account, the employees succeeded in their constructive dismissal dispute and were awarded compensation equal to four- and six-months’ remuneration by the Commission for Conciliation, Mediation and Arbitration (the CCMA).

Section 186(1)(e) of the Labour Relations Act, 66 of 1995 (the LRA) defines constructive dismissal as the termination of an employment contract by an employee with or without notice because the employer made continued employment intolerable for the employee. In order to succeed with a constructive dismissal claim, an employee should be able to objectively show that (i) they terminated the contract of employment; (ii) the reason for the termination of the contract of employment was that continued employment had become intolerable for the employee; and (iii) it was the employer who made continued employment intolerable for the employee.

In the CCMA, the commissioner found the employer’s conduct to be “shockingly unacceptable”, causing continued employment to become intolerable for the employees. The commissioner also highlighted that while there is generally a requirement to exhaust all internal remedies (i.e. lodge a formal grievance) before resigning and claiming constructive dismissal, it would have been futile in this instance as the employees’ attempts to resolve the issues were dismissed, and the offender was, in any case, the final point of call for grievances.

Review application

In the review application, the employer contended that the facts, when assessed objectively, do not support the commissioner’s finding of a constructive dismissal. However, as the employer failed to present any evidence, the Labour Court evaluated the employees’ undisputed account of the facts, and found that the employer had made continued employment intolerable for the employees. As a result, the commissioner’s finding was upheld and the application was dismissed.

In reaching this conclusion, Van Niekerk J considered the main elements of the test for constructive dismissal and particularly that (i) continued employment must, objectively, be intolerable; (ii) the intolerable circumstances must have been of the employer’s making; and (iii) the employer must be culpably responsible for the conduct that created the intolerable conditions. The intolerability of continued employment is assessed from the perspective of a reasonable person in the position of the employee.

The judgment also points out that the tensions which commonly exist in the workplace fall short of an intolerable working condition. What is required, is conduct by an employer which has the cumulative effect of being unbearable, as outlined in Jordaan v CCMA and Others (2010) 31 ILJ 2331 (LAC). In this regard, the Labour Court found that the employer had created a toxic environment characterised by degradation, discrimination and demeaning behaviour, and that the extent of the bullying suffered by the employees meets the LRA’s requirement of intolerability.

In terms of the requirement to exhaust all internal remedies and to only pursue a constructive dismissal dispute as a measure of last resort, the Labour Court found that this option was not available to the employees. Although the employees’ contracts of employment contained a grievance procedure, it would have been pointless as the offender is also the sole member and director of the organisation, and the last point of call for grievances. As a result, no internal measures were available to the employees and their only option was to resign and claim constructive dismissal.

This judgment brings to light the following key points on constructive dismissal:

1. While the onus to prove that a dismissal was fair is usually shouldered by an employer, in the case of constructive dismissal it is the employee who carries the onus to show that the employer made continued employment intolerable, which forced them to resign.

2. It is often difficult for an employee who has been bullied and/or harassed to prove constructive dismissal as bullying and harassment are not always overt. The CCMA and court will assess the conduct of the employer as a whole in order to determine whether it has the effect, objectively, of being intolerable.

3. The requirement for an employee to show that resigning was a measure of last resort is not absolute, and the CCMA and court will assess what was reasonable in the circumstances, and whether alternative measures would have been effective.