Constructive Dismissal : A Trick Stunt

Constructive dismissal emanates from the case where an employee experiences wide intolerable conduct at the place of work and the only way out of it is to resign and claim for constructive dismissal as a last straw. It is the employee who terminates the contract and not the employer. It usually results from conduct of the employer which the employee feels are a fundamental breach/repudiatory of employment contract.

The Black's Law Dictionary, 8th edition, defines the expression 'constructive dismissal' as;

"a termination of employment brought about by making the employee's working conditions so intolerable that the employee feels compelled to leave."

It is trite law that an employee has a right not to be unfairly dismissed from employment and that he has a legal right to approach the court of law and lay a complaint even in one act of breach.

In constructive dismissal claim, the onus is on the employee to show that there were no reasonable alternatives to resignation in existence and that the conditions were not merely uncomfortable, but that they were “intolerable”.

This is couched in a common case that defined constructive dismissal as we know it, Western Excavating v Sharp [1978] ICR 221. The facts of the case are simple in that, Sharp worked for the company and one of his terms of contract was that, if he worked extra time, he could have time off in lieu. In February 1979, he wanted to play a team card game and asked for three hours off but was told that as there was a lot of work to be done, he had to stay. Notwithstanding this, Sharp took the time off and played cards. He was dismissed the following morning for failure to carry out reasonable order. On appeal, he was reinstated but with a 5 day pay suspension in its place This put him in financial difficulty, he went to the welfare officer who would not help, and so he quit so he could collect holiday pay immediately. He then claimed for constructive unfair dismissal at the tribunal.

The renowned Judge Lord Denning took a different approach away from the tribunal’s judgements which asserted that Western Excavating should have “leant over backwards” to help Sharp.

Lord Denning noted that there was a dispute about how to assess what was a constructive dismissal, partly as Megaw LJ in Turner v London Transport Executive [1977] ICR 952, 964, said that the test for whether there was a dismissal under what is now the Employment Rights Act 1996 section 95(1)(c) was the same as whether the dismissal was fair. But instead the ordinary ‘contract test’ should apply so that a dismissal must first be established as follows. According to Lord Denning;

“If the employer is guilty of conduct which 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”

Lord Denning in his concluding remarks said that the Tribunal’s ‘whimsical’ decision was wrong because they failed to separate the question of fairness from whether there was a dismissal. Moreover, Sharp left employment at his own accord.

In Plethora of Zambian cases, our courts have adopted the test laid down by Lord Denning by holding that, for a claim of constructive dismissal to be upheld, the employer's conduct must be such that it amounts to breach of contract prompting the employee to resign.

This is similarly echoed by our Zambian learned Author and Judge, Hon. Justice Dr. Winnie Sithole Mwenda in her book entitled “Employment Law in Zambia”, Cases and Material at page 184.

In the case of Standard Chartered Bank v Celine Meena Nair [2019] Appeal No.14, the court confirmed 36 months compensation for constructive dismissal on Celine when it agreed with the findings of facts by the lower court that the acts and words of abuse were part of a series of breaches for which the respondent was entitled to resign and this is what the court had to say;

“The door slamming incident instigated by the whole Managing Director was appalling and sufficient to entitle the respondent to resign. He shamelessly participated in it and asked others to join. We are of the view that this act disrespected the respondent and inflicted pain on her and entitled her not to trust the appellant because of the Managing Director and to leave. He also accused her of reporting to State House about the board meetings and that she wanted to have him deported…………….. the conduct of Mr. Okai was an abuse which could lead an employee to lose trust and confidence in the employer. Ms. Nair was disrespected, she felt victimized by Okai. She said she was scared, her office was broken into, Mr. Okai stopped taking her calls and approving work from her department. These acts were sufficient to force her to leave or resign”

In the case of Chilanga Cement v Singogo [2009] SCZ Appeal No. 13, the judges brought to their aid by reciting the Labour Law in Britain, with definition by Steven Anderman that “constructive dismissal as ……..….where the employee resigns with or without giving notice, in circumstances such as, he is entitled to do so without notice because of the conduct of the employer?. He alludes to the notion that the conduct of the employer that forces an employee to leave amounted to a contractual repudiation. The employer renounces the terms of the contract as a whole.” the court went further to say that, “there can be no constructive dismissal where an employee's service is terminated by the employer” and had this to say;

"An employee could claim to have been constructively dismissed if he resigned or was forced to leave employment as a result of his employer's unlawful conduct which ... amounts to fundamental breach of the contract of employment. It is the employee who makes the decision to leave."

Thus, leaving employment is a serious step and should not be done lightly. It is worth considering the alternatives before deciding that you have no option but to leave and claim constructive dismissal, as the test of ‘intolerability’ would be an uphill battle to be satisfied in the courts.

You may be able to resolve the situation without having to leave; or you may be able to negotiate an acceptable exit so that it is worthwhile to both you and your employer for you to leave on agreed terms.

Employees should keep in mind that a termination of an employment contract is generally regarded as a unilateral act by the employee and could not be retracted ex-post facto by contending that it was done ‘in the heat of the moment’ or by lodging a claim based on the mere ground of a ‘constructive dismissal’.

Author Peter Chishika | MZIHRM

HR Practitioner and Labour Lawyer