What is constructive dismissal?

Definition of constructive dismissal

Constructive dismissal means the employee resigns and claims that the resignation occurred as a result of the employer's intolerable conduct. The employee further claims that he actually did not want to resign. Because of the fact that the employee alleges that the resignation was involuntary and was intentionally or unintentionally coerced by the employer, the resignation thus becomes a constructive dismissal.

Requirements to establish constructive dismissal:

To convince an arbitrator or judge that unfair constructive dismissal has taken place the employee must show that:

• The employment circumstances were so intolerable that the employee could truly not continue to stay on;
• The unbearable circumstances were the cause of the resignation of the employee;
• There was no reasonable alternative at the time but for the employee to resign to escape the circumstances;
• The unbearable situation must have been caused by the employer;
• The employer must have been in control of the unbearable circumstances.

Section 186 (1) (e) of the Labour Relations Act includes in the definition of dismissal the situation where "… an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee".

It should be noted that not all questionable acts of the employer will always constitute unfair constructive dismissal. This will depend on the extent to which the employer's conduct falls within the five tests for constructive dismissal as set out above.

Interpretation of the 5 (five) tests:

Employers need to be careful in interpreting the meaning of these five tests.

For example, test number 3, where the employee must show that he had no reasonable alternative but to resign, must not be simplistically interpreted.

For instance, it is often the case that the employee theoretically has the option of remaining in the employment relationship and referring an unfair labour practice to the CCMA or other tribunal.

Where the employee fails to do so and resigns instead, this will not always mean he has failed test number 3. Passing this test will depend a great deal on whether, under the circumstances at the time, the employee could reasonably have been expected to stay in the employer's employ for purposes of referring the unfair labour practice dispute.

Truly unendurable circumstances would make such a route unreasonable.

Employees must be equally careful not to misinterpret the law. Where, for example, an employer notifies an employee of a disciplinary hearing, this could genuinely be seen as unbearable to the employee.

However, a resignation by the employee for purposes of avoiding the disciplinary hearing is unlikely to constitute unfair constructive dismissal.

For example, in the case of Mvamelo vs AMG Engineering (2003,11 BALR 1294) the employee was informed he was to face a disciplinary hearing for theft and that criminal charges would also be laid. He resigned and claimed constructive dismissal, but lost the case because it was found by the arbitrator that he had resigned to avoid the disciplinary steps of which he had been notified.

However, where disciplinary steps have been taken unfairly and this renders the employment circumstances intolerable, this can constitute constructive dismissal. In the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd (2009, 4 BALR 406) the employee was found to have been performing his work poorly. As a result the employer decided to stop paying him his salary and replaced it with a commission structure.
The employee resigned and went to the CCMA, where it was found that the employee had been a victim of unfair constructive dismissal. This was because the employee could not be expected to continue employment under such intolerable circumstances.

Conclusion

It is not possible to outline each and every possible act of constructive dismissals. Each case must be evaluated on its own merits.

Medical certificates

Employers are usually confronted with situations where employees do not report for duty and submit medical certificates as explanation for their absence.

The question is - What is a valid medical certificate?

Rule 15 of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa can be used as a starting point.

Rule 15 reads as follows:

15(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
(a) the name, address and qualification of the practitioner;
(b) the name of the patient;
(c) the employment number of the patient (if applicable);
(d) the date and time of the examination;
(e) whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
(f) a description of the illness, disorder or malady in layman's terminology with the informed consent of the patient: Provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
(g) whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
(h) the exact period of recommended sick leave;
(i) the date of issuing of the certificate of illness; and
(j) a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters .

(2) If preprinted stationery is used, a practitioner shall delete words which are irrelevant.

(3) A practitioner shall issue a brief factual report to a patient where such a patient, requires information concerning himself or herself.

Most of the above is largely self-explanatory.

However, I will briefly refer to some of the rules mentioned above and how it serves to protect the employer against abuse of medical certificates by employees.

Rule 15(1)(e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes along to the Doctor and informs the Doctor that he had flu since Monday and requires a sick note. The Doctor will then normally write in the sick note that "I was informed that the patient etc."

The employer does not have to accept this as genuine illness. The Doctor is only telling the employer that the patient says he was ill. The Doctor is not certifying that he made an examination and is able to confirm the illness.

The employer would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the Doctor when he falls ill and are not after he has recovered from the alleged illness.

Rule 15(1)(f) states that the Doctor should give a description of the illness. This may not always be stated, particularly where the nature of the illness, if disclosed, may embarrass the patient.

If the employer has an extremely good reason, for example if this employee is regularly off sick, then perhaps the employer could assist the employee in typing a letter for the Doctor authorising him to disclose to the eomplyer the nature of the illness. Alternatively the employer could request the employee to go to the Doctor and obtain the information in terms of rule (3).

Rule 15(1)(j) requires the medical practitioner to print his name and initials on the medical certificate in addition to his usual signature.

Regarding medical certificates issued by a clinical hospital, it is normally found that the certificates are not signed by a registered medical practitioner. Every clinic and every hospital has qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.

An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable.

A certificate signed by a person other than a qualified medical practitioner who is authorised to make such examination and diagnosis is equally unacceptable.

This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and in such cases the employer must insist that the rule (j) be complied with, otherwise the employer must treat the period of illness as unpaid leave.

Remember also that the those occasions where an employee takes only one day or two days off sick and of course is not required to produce a medical certificate, those days remain classified as sick leave days and are deductible from the employees sick leave entitlement.

Polygraph ("lie-detector") testing in the workplace

A polygraph test is a test used to verify a person’s truthfulness and is often called a ‘Lie Detector Test.’

Polygraph testing is a fairly new concept in South Africa, especially in disputes relating to employment relationships. There is no legislation at this point to control the use of the test or to protect the employee’s right against the abuse of the test.

It is against the Constitution of South Africa to compel a person to undergo a polygraph examination, unless she or he consents to it. The consent must be in writing.

The individual should be informed that—

• the examinations are voluntary;
• only questions discussed prior to the examination will be used;
• he/she has a right to have an interpreter, if necessary;
• should he/she prefer, another person may be present during the examination,provided that person does not interfere in any way with the proceedings;

• no abuse in whatever way will be allowed;
• no discrimination will be allowed;
• no threats will be allowed.

The question, however, is when is an employer allowed to make use of a polygraph test.

Generally, employers are permitted to use the polygraph to investigate specific incidents where—

• Employees had access to the property which is the subject of the investigation;
• There is a reasonable suspicion that the employee was involved in the incident;
• There has been economic loss or injury to the employer’s business like theft of company property;
• The employer is combating dishonesty in positions of trust;
• The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company;
• The employer is combating deliberate falsification of documents and lies regarding true identity of the people involved.

Polygraph results cannot be released to any person but to an authorised person. Generally it is the person who has undergone the polygraph test (examinee), or anyone specifically designated in writing by the examinee, firm, corporation or government agency that requested the examination.

The next question is: What is the status of a polygraph test at the CCMA?

Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the commissioner is to determine the admissibility and reliability of the evidence.

Polygraph test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct. In other words, polygraph test results, on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence.

Internet usage by employees!

In the present day, nearly all businesses have access to the internet. Employees are employed in certain positions to perform certain tasks. Generally, most employees have access to the internet, albeit to send and to receive e-mails on behalf of the employer.

During the past few months, our office have receive numerous enquiries from employers who seem to be experiencing difficulty with employees surfing the internet and making use of the employer’s e-mail facility for correspondence with family and friends. On the odd occasion we have also received enquiries from employees, demanding to know what action they can take against an employer who has read their private e-mails and has thus "violated my right to privacy."

So what then is the position with regard to employees making use of the internet facilities of the employer?

Before we can actually answer this question, we have to consider the possible negatives consequences of employees making use of the internet facilities of the employer.

Firstly, have a look at what employees can do, and probably are doing, with company time for which they are being paid, and also what are they doing with the employers e-mail facilities which are provided to them for business purposes?

Employees can be wasting the employers' time simply "surfing the Net", playing games on the internet, either with themselves or with other employees, they could be wasting company time by going into chat rooms, they might also be running their own little sideline business by using the employers' facilities.

Then there is the other more serious side, such as downloading or distribution of pornographic material, other undesirable material which may be political or racist in content , distributing dirty jokes, or even giving away trade secrets to a competitor for personal gain. They might even be very quietly e-mailing the employers' customer data base, pricing structures and so on to their own private e-mail addresses, having the intention of later resigning and starting a business in opposition to the employer.

These are only some of the reasons why the employer should have full and total control over his electronic communications equipment, which includes telephone and fax facilities.

Unfortunately, there is still not a large amount of case law existing on employees misuse of the employer's facilities in this respect.

Probably the most well-known case is a that of Jacqueline Bamford and four others who were employed by Energizer (SA) Ltd, and who were dismissed in October 2000 on grounds of having repeatedly violated company policy and procedure regarding the use of the employer's electronic mail system, using in the employer's facilities for receiving and for distributing pornographic material and jokes, and for violating company procedures.

The employees involved in this case maintain that the employer did not have any rules in place in respect of the alleged e-mail abuse, they maintained that they did not send chain letters over the system, and they maintained further that there was inconsistency on the part of the employer in the application of discipline, and of course they maintained that the employer had violated their right to privacy in intercepting their private e-mails.

This case was reported on by Tony Healy in the Star Newspaper workplace supplement on October 10th, 2001.

It should be noted that the arbitrator concluded that individuals do not have an automatic right to utilise the employer's facilities for the purpose of personal and private communications, and then not expect to their employer to read these communications during the course of his monitoring the use of his equipment.

Employees should be made to understand, if they do not already understand, that the internet is public domain, and no employee is entitled to utilise his employer's business equipment, which is provided to the employee for business purposes, to further his own personal and private interests.

Every employer has the right to insist that are the resources with which he provides his employees are to be used strictly and solely for business purposes, and that the personal or private use thereof is strictly forbidden.

Employees must also understand that they should never use the internet for the transmission of personal and private communications if they do not want outside parties to be privy to those communications, and perhaps even more importantly, employees must be made to understand that upon entering the employer's premises, a large part of their "right to privacy" is forfeited whilst they are under the direction and control of the employer.

The first understanding that employees must have is that upon entering the employer’s premises, the employee immediately comes under the control and direction of the employer.

The employee is no longer in a position to do as he/she pleases, and one consequence of this is that the employee does not have an exclusive “right to privacy”, and especially in terms of using the employer’s resources and equipment.

The employee enters the premises in terms of a contractual arrangement, and then only with the permission of the employer.The employee is then expected to embark on executing his agreed duties in terms of any contractual arrangement and applicable job description, whether written or verbal.

It is advisable that the employer make it a condition of employment, contained in the employment contract (as opposed to just a normal company rule or regulation in the employee handbook) that private use of the company electronic communications facilities, including the internet, e-mail, fax and telephone, is prohibited. It should be further stated in the employment contract that should the employee breach this clause, disciplinary action will follow which may lead to dismissal.

The moral of the story is - Private use is prohibited.

Some may argue that this is harsh. Others may argue that such a rule is impossible to implement, and that employees will use the facilities – and particularly the e-mail, for private use.

But if the employer wishes to ensure that his employees are being productive, are not wasting time valuable company time that the employee is being paid for, that employees are complying with terms and conditions of employment, then the employer must have rules and regulations in place, and he must embody prohibitive clauses in the employment contact, and above all, he must monitor the staff usage of the equipment and resources that are provided for business purposes.

The Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, does in fact grant permission to certain persons to intercept indirect communications under certain circumstances.

The main issues around whether or not the employer can intercept (read, download, etc ) employees e-mails are clarified in the Regulation of Interception of Communications and provision of Communication-related information Act, 2002, (the Act).

If an employer provides resources for business purposes, then he is entitled to prohibit private use of those resources.

An employer is entitled to expect his employees to come to work to carry out their contractual duties – not to attend to private affairs.

The Act states, in Chapter 2, Part1 section 5 , that any person other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception.

The first thing then that the employer needs to do is to include a clause in the employment contract to the effect all electronic communications equipment is provided by the employer for business purposes, and that private use thereof is prohibited.

The second thing is that the employer must include a clause in the employment contract, stating that , in accepting employment with (name of Company), the employee agrees that the employer will from time to time intercept all e-mails communications, that are sent or received by the employee.

The Act also makes the following provision : (Chapter 2 , Part1 section 6 sub-paragraph 1)

“Any person may, in the course of carrying on any business, intercept any indirect communication (e-mail) :

a) by means of which a transaction is entered into in the course of that business.

b) Which otherwise relates to that business

c) Which otherwise take place in the course of the carrying on of that business in the course of its transmission over a telecommunications system.

The Act states further (sub-paragraph 2) that a person may intercept an indirect communication (e-mail)

d) in order to establish the existence of facts

e) for purposes of investigating or detecting the unauthorized use of that telecommunications system

The above provisions – from a) to e) are the reason why the employer stipulates that all electronic communications equipment is provided for business purposes only, and that private use is prohibited.

and includes further

a) if the telecommunications system concerned is provided for use wholly or partly in connection with that business

b) if the system controller has made all reasonable efforts to inform in advance a person who intends to use the telecommunications system concerned, that indirect communications transmitted by means thereof may be intercepted or if such indirect communication is intercepted with the express or implied consent of the person who uses that telecommunications system.

The above provisions cover the employer in that the employee has been informed in the employment contract.

To summarize, the employer is entitled to stipulate (and indeed should stipulate) in the employment contract that all electronic communications equipment is provided for business use only and that private use is prohibited, further that interception of communications shall take place from time to time , and that any breach of these requirements shall result in disciplinary action which may lead to dismissal.

Who should chair disciplinary hearings?

It happens in practice that the employer approach a third party, such as an attorney, to chair disciplinary hearings of employees. Such practise is not prohibited.

The problem, however, is that the CCMA may make a ruling that the dismissal was unfair as result of the chairperson being biased.

In most instances, I would advise employers not to make use of the services of an attorney to chair disciplinary hearings. The reason is clear - the attorney receives the instruction from the employer, and the employer provides the attorney with all the facts, and sometimes also suggests a certain sanction that the employer wants to have imposed.

There is a number of factors that may suggest that the hearing chairperson could have been biased. Some of these factors are the following:

• Where the chairperson has previously had a clash with the accused employee; or
• Where the chairperson has prior knowledge of the details of the case; or
• Where the chairperson unreasonably turns down requests from the employee for representation, witnesses, for the services of an interpreter or other requirements that will make the hearing a fair one; or
• Where the chairperson makes a finding that is unsupported by the facts brought before the hearing.

It is quite conceivable that an attorney, who acts on behalf of the employer, may be found to have been biased.

In order to ensure that employers do not lose cases due to chairperson bias or alleged bias at disciplinary hearings, employers must ensure that:

• Hearing chairpersons have no involvement in or knowledge of the case before the hearing.
• Hearing chairpersons have a solid understanding of what constitutes apprehension of bias.
• They contract in a labour law specialist to chair hearings where the employer has no internal official with the necessary qualifications and knowledge to carry out the task properly.