15. Constructive dismissal

Unjustified dismissal also includes the notion of constructive dismissal in terms of which actions of the employer which repudiate the terms of contract, though not actually terminating it, can amount to the effective dismissal of the employee. The employer's actions have to be sufficiently serious to give the employee the impression that he/she has no option other than to resign.

The terms of the contract may be either implied or expressed, the former making the matter more difficult to decide. The employer may unintentionally repudiate implied terms of a contract such as, for example, failing to put an end to the sexual harassment of an employee. While the employer may in all honesty have believed that the issue was not that serious, such failure could make the employee's situation intolerable and could leave the employee with little option but to resign.

Similarly, an employer who behaves in an insulting and abusive manner towards an employee could be repudiating an employer's implied duty to provide unthreatening working conditions. An employee who resigns in the face of such behaviour could be seen as having no other option and the employer's actions could amount to constructive dismissal.

A breach of the expressed terms of a contract are usually easier to determine and make the matter more simple. For example, an employer who fails to pay an employee would be acting in breach of the contract and could hardly be surprised if the employee chose to leave. A failure to provide safe working conditions, in a clearly dangerous situation which caused an employee to resign, would also amount to constructive dismissal.

One of the most obvious and usual forms of constructive dismissal occurs when an employer unilaterally, and without good reason, alters the terms of a contract. When the employee then leaves or refuses to carry out the altered duties, he or she could be justified in doing so, depending on the extent of the alteration.

Where, however, there is a valid commercial reason for the alteration of a job and it is offered, for example, as an alternative to retrenchment, the situation would clearly be different and the employer would generally be able to justify such an action.

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