Did he Jump or was he Pushed - Revisiting Constructive Dismissal
![handle is hein.journals/safrmerlj24 and id is 358 raw text is: Analyses
Did He Jump or Was He Pushed? Revisiting
Constructive Dismissal
AH DEKKER
University of South Africa
1 Introduction
The concept of a constructive dismissal was imported into our law from
English law. Initially, the employee's resignation because of the employer's
wrongdoing was compared with the common-law termination of a contract by
one party because of the other's wrongful repudiation (Woods v WM Car
Services (Peterborough) [1981] IRLR 347 (EAT); Mafbmane v Rustenburg
Platinum Mines [2003] 10 BLLR 999 (LC) in par 47).
This common-law test of the employer's repudiation by making employ-
ment intolerable fell away when s 186(1)(e) of the Labour Relations Act 66 of
1995 (LRA) firmly recognised this type of dismissal (Sappi Kraft (Pty) Ltd t/a
Tugela Mill v Majake NO and Others (1998) 19 ILJ 1240 at 1242; Murray v
Minister of Defence 2009 (3) SA 130 (SCA); (2008) 29 ILJ 1369 (SCA) in
pars 8 and 10). Thus, although s 186(1)(e) does not use the term 'constructive
dismissal' directly, the 'dismissal' definition covers instances in which 'the
employment is terminated by the employee with or without notice because
the employer made continued employment intolerable'. This provision allows
for the 'construction' of a dismissal in order to provide relief for the employee
who was forced (directly or indirectly) to resign.
A further type of constructive dismissal was added by the 2002
amendments to the LRA (inserted by s 45 of the Labour Relations
Amendment Act 12 of 2002). Under s I86(1)(f), the term 'dismissal' was
extended to include the termination of a contract of employment by an
employee, with or without notice, because the new employer, after a transfer
in terms of s 197 or s 197A of the LRA, provided the employee with
conditions or circumstances at work that were substantially less favourable to
the employee than those provided by the old employer.
Cameron JA calls constructive dismissal a 'victory for substance over form'
(Murray supra in par 8). It protects employees against the employer who
makes their lives so intolerable that they resign and, as a result, forfeit their
right of recourse against the employer. At the same time, the employer's
interests should be protected against disgruntled employees who resign and
use constructive dismissal as a way of getting back at the employer. To ensure
346
0 2012. All rights reserved.
Cite as: (2012) 24 SA Aer, LJ 346-354.](ViewImageLocal?handle=hein.journals/safrmerlj24&div=32&collection=&method=preview&ext=.png&size=3)
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Did he Jump or was he Pushed - Revisiting Constructive Dismissal
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