The term ‘constructive dismissal’ means that an employee terminates his or her employment contract with or without notice. However, this resignation is not on an entirely voluntary basis.
In other words, a constructive dismissal was caused by something that the employer did or did not do. What many employees seem to forget is that for an allegation of constructive dismissal to succeed, the workplace has to have become intolerable for him or her as opposed to merely not uncomfortable.
The case of Van den Berg v Phoenix Surgical SA (Pty) Ltd – (2017) CCMA 6.13.5 also reported at 92017) 5 BALR 586 (CCMA) illustrates an instance of constructive dismissal.
• An employee resigned after the manager had expressed concerns about repeated errors made by the employee. It was also stated that a hearing may take place.
• The employee submitted that her resignation was a dismissal as her working conditions had become intolerable. The employer submitted that the employee was not dismissed and elected to resign.
• The test for if working conditions become intolerable is objective. The subjective feelings of unhappiness or anger are not sufficient. It must be proven that the employer was responsible for creating an intolerable environment. The Commissioner stated that if there are reasonable alternatives to resignation then the employee must use these.
• In this case, the employee was given a choice to attend a hearing or to resign. The Commissioner found that this did not amount to coercion.
It was noted that a persistent offender, who the employer tries to correct, cannot find refuge in a claim for constructive dismissal. Since the employee failed to prove that she was dismissed, the Commissioner found that the CCMA lacked the required jurisdiction and dismissed the application.