Constructive dismissal is component of unfair dismissal which is provided for in Section 12B of our Labour Act. It is a form of unfair dismissal that the Labour Act has deemed unlawful entitling a victim of it to approach the proper labour tribunals to seek justice. It is however sad to note that despite the immemorial existence of this claim in our labour laws, many employees have failed to successfully sustain the claim whilst many employers seemingly appear to be unaware of the existence of this unique claim until they are dragged to a court of law to answer to the claim. For these reasons, this Article endeavours to assist all interested parties at the workplace in understanding this claim.
The Labour Act identifies constructive dismissal as being constituted where an employee terminates the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee by any act by the employer that renders the working relationship intolerable. In other words, constructive dismissal is constituted by any act of the employer which makes the continuation of the employment relationship unbearable for the employee to an extent that the employee is left with no option but to resign. Constructive dismissal as a form of unfair dismissal therefore stands unique from all other forms of unfair dismissals that are provided for in section 12B of the Labour Act in that instead of the employer directly terminating the employment relationship, it is the employee who decides to terminate the relationship but still being allowed by the law to claim for damages on the basis that he or she has been dismissed unfairly.
For an employee to succeed in a claim for constructive dismissal, he or she has to prove three things which are as follows:-
(a) That he or she brought the contract of employment to an end.
(b) That the reason for bringing the contract to an end was that the employer had made the prospects of continued employment intolerable for him or her.
(c) That he or she had no reasonable options other than terminating the contract.
Our courts have insisted that the above aspects must be proved by an employee to succeed in a claim on constructive dismissal. As for requirement (a), our courts have dismissed claims on constructive dismissal where an employee, without having ended the contract of employment, merely approaches the courts complaining about the conduct of the employer. It should be stressed that termination of the contract in this context can either be with or without notice.
As for requirement (b) above, the conduct by the employer must be so seriously so as to undermine or challenge the very existence of the parties' contract of employment. For instance, our courts have hailed the following conduct as constituting acts of constructive dismissal:-
(i) The material and unilateral variation of terms of contract and employment conditions by the employer
(ii) Degrading of an employee from a superior position to an inferior position
(iii) Withholding an employee's salary with no valid reason
(iiii) The setting up of targets that are impossible to reach by the employer
(v) Sexual harassment by the employer
Our courts have historically dismissed claims on constructive dismissal where the employee would have left the employment for other reasons not related to the conduct of the employer. Thus there should be a close connection between the conduct of the employer and the termination of the contract of employment by the employee.
Lastly, the employee has to prove that terminating the employment relationship was the only option available to him or her. This means that where an employee has other remedies available to redress the conduct of the employer, such an employee must pursue such remedies before opting to making a claim on constructive dismissal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
