Employment relationships

Employment relationships can be difficult – even “intolerable”. This article looks at an employee’s legal options if this is true.


Life at work has become a misery. About a month ago, my boss started sexually harassing me – saying sexual things and touching me in unwelcome fashion. I have told him to stop, but he just laughs. I don’t want to complain to senior management, as it would be his word against mine. To make things worse, the company is currently restructuring, and as part of this process, my salary will be reduced. Many colleagues will be similarly affected. Management says it is open to alternatives or suggestions, but I feel it would be useless to even try to get anything across to management. I’ve decided to hand in my resignation – could I claim constructive dismissal?


The Labour Relations Act seeks to protect employees from all kinds of unfair dismissals, including so-called “constructive dismissals”. These refer to circumstances where an employee’s resignation is regarded in law as a dismissal by he employer.

“Dismissal” is defined to include a situation where “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. Importantly, it is up to the employee to prove that there was a dismissal – in this case, that the employer made continued employment “intolerable”.

This is not necessarily an easy task. Case law has tended to focus on two important factors:

• The employee must establish that the employer caused the resignation (i.e. that there was no voluntary intention on the employee’s part to resign); and,
• The employer’s conduct as a whole must be judged to be such that the employee cannot be expected to put up with it.

Case law indicates that a tough standard is set – an employee has to show he or she had no option but to resign. (in one case, an employee was bashed with a coat hanger by the employer, but this was not found to be sufficient proof of a constructive dismissal).

Resignation in these circumstances must be a “last resort” after all other reasonable channels have been explored to resolve the problem. These would ordinarily include complaints with management or using an employer’s grievance procedures. A court is unlikely to be sympathetic to an employee who says it would be useless to approach senior management with her problems. An employee might even be expected to take legal action in the form of a referral of a dispute to the CCMA or a bargaining council or by lodging a complaint with a labour inspector. Before resorting to resignation, an employee claiming constructive dismissal should be ready to show that she tried all reasonable alternatives to resolve the problem, but in vain.

Even if the employee is able to prove that she resigned because continued employment had been made intolerable by the employer, the “dismissal” could still be “fair” if the employer is able to show a good reason for its conduct. As in the question, an employer may need to restructure its business for operational reasons and employees may be offered different jobs at lower salaries. The employee may genuinely find that continued employment on there terms is intolerable, but if the employer can that its need to restructure was genuine and that it consulted with employees properly, the “constructive dismissal” will be fair.

Labour Pains – Employment Equity Act June 2002 deadline

Many employers face a 1 June 2000 deadline to comply with the first phase implementation of affirmative action under the Employment Equity Act. With less than 3 months to go, this month’s column summarizes the steps which the law requires “designated employers” to take in order to avoid unwanted State intervention in its affairs and potentially ruinous financial penalties.

The affirmative action chapter in the Act applies only to “designated employers”. These are employers who employ 50 or more employees or, even they employ fewer than 50, who have annual turnover exceeding a stipulated amount. The amount varies according to the economic sector into which the employer falls – from R2-million for the agricultural sector to R25-million for wholesale trade, commercial agents and allied services. Organs of state and municipalities are also “designated employers”.

The larger designated employers, employing 150 or more employees, must meet a 1 June 2000 deadline in submitting their first reports on what they are doing about employment equity. Smaller designated employers (employing from 50 to 149) must have their first reports in by 1 December 2000.

The report must be a prescribed form, which has been published by the Department of Labour, but the process required goes way beyond filling in and submitting a form.

In brief summary, the Act requires a designated employer to:

• Appoint one or more employment equity managers;
• Consult its employees about implementing affirmative action measures in the workplace;
• Conduct an analysis of its employment practices and policies;
• Draw up a profile of its workforce (by race, sex and disability status at each job level);
• Formulate an “employment equity plan”;
• Submit an employment equity progress report to the Director-General of Labour; and,
• Submit an income differential statement to the Employment Conditions Commission.

Done properly, these are significant tasks. The progress report cannot be properly fitted in unless the other steps have been taken first. So, time is running out for those not yet off the starting blocks!

Here are some examples of the work, which needs to be done in order to be able to fill in the prescribed form:

• The workforce must be divided into prescribed occupational categories and must also be classified by race, sex and disability status;
• Detailed information regarding the numbers of employees whose employment has terminated in the previous 12 months (and the different reasons for termination) needs to be collected and analyzed by occupational category, race, sex and disability status;
• The same analysis needs to be done for employees who have been subject to disciplinary action and for those who have received training;
• Detailed audits of all employment practices (including recruitment procedures, remuneration policies, promotions and retention measures) need to be conducted in order to identify barriers to employment equity for black people, women and the disabled;
• Decisions about what affirmative action measures will be implemented need to be taken and incorporated in an employment equity plan;
• Numerical goals need to be set – e.g. In 5 years’ time we hope to have 80% African managers or 50% women managers or whatever is realistic in the employer’s particular circumstances.

Failure to comply with the steps required by the Act, can lead to huge fines being levied. The message is clear: spend the time and effort required to comply with the Act’s requirements or face the consequences.