Analyses: Did He Jump or Was He Pushed? Revisiting Constructive Dismissal

• Jurisdiction: South Africa
• Pages: 346-354
• Date: 25 May 2019
• Published date: 25 May 2019
• Author: AH Dekker

Analyses

Did He Jump or Was He Pushed? Revisiting

Constructive Dismissal

AH DEKKER

University of South Africa

1 Introduction

The concept of a constructive dismissal was imported into our law from

English law. Initially, the employee’s resignation because of the employer’s

wrongdoing was compared with the common-law termination of a contract by

one party because of the other’s wrongful repudiation (Woods v WM Car

Services (Peterborough) [1981] IRLR 347 (EAT); Mafomane v Rustenburg

Platinum Mines [2003] 10 BLLR 999 (LC) in par 47).

This common-law test of the employer’s repudiation by making employ-

ment intolerable fell away when s 186(1)(e) of the Labour Relations Act 66 of

1995 (LRA) f‌irmly recognised this type of dismissal (Sappi Kraft (Pty) Ltd t/a

Tugela Mill v Majake NO and Others (1998) 19 ILJ 1240 at 1242; Murray v

Minister of Defence 2009 (3) SA 130 (SCA); (2008) 29 ILJ 1369 (SCA) in

pars 8 and 10). Thus, although s 186(1)(e) does not use the term ‘constructive

dismissal’ directly, the ‘dismissal’ def‌inition covers instances in which ‘the

employment is terminated by the employee with or without notice because

the employer made continued employment intolerable’. This provision allows

for the ‘construction’ of a dismissal in order to provide relief for the employee

who was forced (directly or indirectly) to resign.

A further type of constructive dismissal was added by the 2002

amendments to the LRA (inserted by s 45 of the Labour Relations

Amendment Act 12 of 2002). Under s 186(1)(f), the term ‘dismissal’ was

extended to include the termination of a contract of employment by an

employee, with or without notice, because the new employer, after a transfer

in terms of s 197 or s 197A of the LRA, provided the employee with

conditions or circumstances at work that were substantially less favourable to

the employee than those provided by the old employer.

Cameron JA calls constructive dismissal a ‘victory for substance over form’

(Murray supra in par 8). It protects employees against the employer who

makes their lives so intolerable that they resign and, as a result, forfeit their

right of recourse against the employer. At the same time, the employer’s

interests should be protected against disgruntled employees who resign and

use constructive dismissal as a way of getting back at the employer. To ensure

346

(2012) 24 SA Merc LJ 346

© Juta and Company (Pty) Ltd