The Sunday Mail
Legal Matters with Arthur Marara
IN the past, we have dealt with “unfair dismissal” from work in the context of termination without compliance with provisions of the applicable industrial code.
There is another form of dismissal that has been raised in many instances, but marked with confusion — “constructive dismissal”.
What is constructive dismissal? How does it arise in terms of the Labour Act (Chapter 28:01), and what are the remedies in terms of the law?
Constructive dismissal arises by virtue of Section 12B (3), which provides that “(3) An employee is deemed to have been unfairly dismissed — (a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.”
Constructive dismissal is claimable where an employer has committed conduct which, as a breach, goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment. (Astra Holdings (Private) Limited v Peggy Kahwa)
Where an employer commits a breach that goes to the root of the employment contract, the employee is entitled to treat him or herself as discharged from further performance. He or she is constructively dismissed.
However, they must act promptly.
In Rainbow Tourism Group v Richard Nkomo SC 47/2015, the employer submitted that the respondent did not immediately allege constructive dismissal, hence the consequent termination of the employer-employee relationship, and that he was quite content, one-and-a-half months after the transfer letter, to seek particulars for the purposes of defending himself in misconduct proceedings scheduled for January 15, 2013.
His conduct pointed to him being an employee and not to one who had been constructively dismissed. The Supreme Court agreed with the employer’s submission, in particular that he provided himself with neither option.
He did not leave at the instant nor did he give notice and say he would be leaving at the end of the notice. He continued to go to work, and to do as he was instructed in the letter of transfer. He continued to receive his salary and benefits right up to the end of January 2013. As the appellant submitted, this was not the conduct of one constructively dismissed.
Promptness in action is, thus, key to meeting the threshold for constructive dismissal.
If the employer is guilty of conduct that is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.
If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave instantly without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. However, the conduct must in either case be sufficiently serious to entitle him to leave at once.
Moreover, he must make up his mind soon after the conduct of which he complains about; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.
He will be regarded as having elected to affirm the contract. (Western Excavating v Sharp (1978) 1 ALL ER 713)
In assessing whether or not there was constructive dismissal, there is a two-pronged inquiry that has to be undertaken — whether the employer’s conduct was such that it deliberately made employment intolerable for the employee; and whether the employee terminated his or her employment with the employer because of such conduct.
What constitutes “intolerable” differs from the facts of each case.
The onus is on the party alleging constructive dismissal to establish that the employer’s conduct was such that it made his or her employment intolerable.
There are many people who usually rush to a labour officer in terms of Section 93 or the National Employment Council claiming “constructive dismissal” when they are still employed by their employers.
There is no constructive dismissal when you are still employed. You have to terminate your contract of employment first, and this can be done with or without notice as per the provisions of the Labour Act.
The reason for the termination has to be that the employer’s conduct was such that it made his or her employment intolerable.
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practising law in Harare. He is also a notary public and conveyancer.
