The wording in contracts of employment – which relates to bonuses, commissions and increases – are key. For employees, the contract of employment is the most important document that governs the employment relationship between themselves and their employers. This document can even replace principles such as constructive dismissal as Van Niekerk/ Andrew John Weyers Incorporated [2018] 27 CCMA 6.13.4 shows.
An admitted attorney and conveyancer resigned after claiming that her firm of attorneys had not discussed a commission structure with her, as stipulated in her contract of employment. In addition, they had not paid her commission for several months.
She claimed that she had undergone a constructive dismissal because this had rendered her employment intolerable. The CCMA Commissioner noted that the test for constructive dismissal is if the employer – by their actions – had made the employment relationship intolerable and not if the employee had no option but to resign.
For a claim of constructive dismissal to succeed, it must be proven that a reasonable alternative to resignation did not exist. The employee had relied mainly on her contractual rights to make her case.
After the employer had lost a substantial amount of money through irregularities committed by a former bookkeeper, a senior partner had discussed the issue of commissions with the employee. After this discussion, she had resigned without notice.*
The Commissioner found that the contract did not give the employee a right to commission over and above her salary. It was held that the employee failed to prove that she was dismissed.
The employee’s case was dismissed.
* The employee had committed herself to repayments on the purchase of a luxury car. The moment she realised that her employer was under financial stress, she left without working the required notice to begin working for another firm of attorneys.
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If you are faced with a constructive dismissal allegation, contact Anndine Dippenaar and the team to help you navigate this matter. Follow this link to contact her.