Commentary on constructive dismissals
The contract of employment comes to an end if the employee voluntarily and freely resigns from the service of his employer. Should a dispute arise in the event of a voluntary resignation, the court will not have jurisdiction to entertain the matter as the CCMA has jurisdiction only with regard to employees and disputes concerning employment relationships.
Although the term employee has been extended to include the ex-employees, this extension is only permissible where the employer terminates the employee’s services. However, where an employee is forced to resign due to the duress of the employer, or where the employer renders the relationship with the employee so unbearable or intolerable that the employee has no other option but to resign, the situation is different.
Consequently the termination of the employee’s services is to be accredited to the employer and the constructively dismissed employee is entitled to approach the CCMA for relief, although the employee will bear the onus of proving such constructive dismissal. Professor Landman in his article titled” Constructive Dismissal” says – Duress is not always required as “something less will suffice”. In the case of Schana v Control Instruments (Pty)Ltd (1991)12 ILJ the court set out five elements necessary to set aside a contract on the grounds of coercion or duress if, inter alia, there is,
- actual violence or reasonable fear
- fear caused by a some considerable evil to the person or his family
- a threat of an imminent or inevitable evil
- a threat that is contra bonos mores
- action by person due to the violence or threat.
Author: Cyprian Vimba
Originally published: Monday, 30 June 2003
Revised: N/A