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Constructive dismissal

When discomfort is not sufficient

Wed, 18 Apr 2012 13:36

Jonathan Goldberg

A recent CCMA case of Arries vs The Effectiveness Company (2011) 20 CCMA 6.13.5 requires us to revisit a common topic, that of constructive dismissal.

It is often the exception rather than the rule when an employer makes continued employment intolerable for an employee with the result that the employee can claim that they have been constructively dismissed.

A sense of discomfort, dissatisfaction or even severe frustration is not sufficed to prove that there has been a constructive dismissal. In the case before the CCMA above, the employee was a Human Resources Generalist and remained within such person for two (2) months.

The work that she was required to perform was substantially different from the profile that she was given at the pre-employment interview as some of the other HR employees had left, resulting in an increased workload, additional hours and seemingly impossible deadlines.

She claimed that the CEO was abusive towards her in front of other employees and that the work she was being required to perform could be outsourced and completed within an hour. The employee did not follow the grievance procedure as the CEO would have dealt with it and instead resigned and referred a constructive dismissal claim to the CCMA.

The CCMA Commissioner focused on the difference between an intolerable working relationship and an uncomfortable one. The commissioner concluded that the stress placed on employees in the particular company was most likely greater than in others.

The employee stated during the arbitration that she believed that if she missed deadlines, she would be disciplined. This was a significant statement as the commissioner concluded that the employee’s resignation remained in the realm of “personal choice”. The employee had found herself in an uncomfortable situation and not an intolerable one. As such, her application for constructive dismissal was subsequently dismissed.

Jonathan Goldberg is the CEO of Global Business Solutions. Email him at execoffice@globalbusiness.co.za