CONSTRUCTIVE DISMISSAL: RESIGNATIONS AND DATE IN FUTURE – WHAT ARE THE LEGAL IMPLICATIONS?

In the case of??SCHREUDER V CSSI SOUTH AFRICA (PTY) LTD AND ANOTHER – WECT478-22 as reported in Butterworths [2023] 4 BALR 427 (CCMA)

The employee managed the Cape Town and Durban branches of CSSI South Africa, a notable firm specialising in data recovery services and IT components sales. She made claims of unfair treatment leading to what she termed as a "constructive dismissal." Her claims were rooted in a series of disputes with the employer, culminating in her resignation on 14 December 2021.

Previously, the CCMA had issued a default arbitration award on 3 June 2021, acknowledging the employee as a victim of unfair labour practices. The award also stipulated her return to work post-maternity leave and entitled her to a backpay of R90,000, equivalent to three months' wages.

However, a pivotal moment arose in December 2021 when the employee faced resistance over signing a document making her personally responsible for losses from her negligence. This incident led her to allege that her resignation was indeed a constructive dismissal, prompting her to refer the matter to the CCMA for unfair dismissal on 13 January 2022.

Several facts came under scrutiny during the proceedings. The terms of the employee's employment were ambiguous. While she initially served under a fixed-term contract from 17 June 2019 to 30 September 2019, she later resumed on an open-ended contract from 1 June 2020. Notably, both parties presented no written employment contract during the proceedings.

The employee cited numerous grievances, including being ousted from the Synergy 5 platform, threats of retrenchment, and non-payment of her wages since October 2020. She maintained that these issues, compounded by threats from the Managing Director, made her working conditions intolerable, leading to her resignation.CSSI, in its defence, recognised a past employment relationship with the employee but contended that it had terminated well before her resignation date, thus refuting claims of constructive dismissal.

The LRA, in Section 186(e), clearly states that an employer making the working environment intolerable for an employee, resulting in their resignation, qualifies as a dismissal. For a constructive dismissal claim to be upheld, various conditions must be met. This includes proving an existing employment relationship, the employee's termination of the contract due to intolerable conditions, and the employer's role in creating those conditions.

The Commissioner ruled that the employer did not employ the employee at the time of her resignation. The previous award did not cement her continued employment status, rendering her unable to claim constructive dismissal.

In conclusion, while acknowledging that the employee might have faced unfair treatment, the Commissioner found that the main issue was the lack of proof of dismissal. The application was ultimately dismissed since the CCMA lacked jurisdiction over unproven dismissals.