Employers meddling in the private affairs of their employees have been the topic of many a discussion in the past. Typically, this revolves around the employer's right to take action against employees for their after hours conduct on social media or in public. Most workers are now aware that they may face disciplinary action, even dismissal, where their social media conduct causes embarrassment to their employer. However, it appears that some employers take their right to interfere in the private conduct of employees a step too far...
The Labour Court recently considered allegations that an affair between the employee's wife and his boss made continued employment intolerable. The court had to consider whether the conduct by the manager (employer) could sustain a claim of constructive dismissal.
Constructive dismissal is a statutory remedy whereby the employee claims that the employer's culpable conduct resulted in the termination of the employment relationship. This category of dismissal is intended to protect employees from situations where the employer no longer wishes to retain their service but, instead of dismissing them, makes continued employment intolerable. But for a claim for constructive dismissal, employees suffering in abusive relationships would have resigned without recourse.
Essentially, the employee must claim and show that
However, not every disagreement in the workplace gives rise to a valid claim of constructive dismissal. Our courts (correctly) place a very high hurdle in the path of a disgruntled employee seeking to succeed in claiming constructive dismissal. Continued employment must be intolerable. This may translate into "no reasonable employee could be expected to accept such behaviour any longer". Being upset about your employer's refusal to pay you a bonus or grant you a salary increase does not satisfy this test. Being unhappy because your boss shouted at you similarly does not meet the requirement. But what is the situation when your boss has an ongoing affair with your wife?
In Niland v Harvey & others, the Labour Court considered what Judge Steenkamp referred to as "... a take of white mischief in the arming community of the Eastern Cape". The judgement records that the employee got married subsequent to him joining the firm. His wife then had an affair "for some years" with his employer. The employee eventually resigned, claiming that the employer (by having and continuing an affair with his wife), made continued employment intolerable. The employment tribunal dismissed the employee's claim, holding that he failed to prove constructive dismissal. The employee asked the court to review and set aside the arbitration award.
The court considered the sad facts of the matter. It concluded that the employee was not induced into resigning as a result of the employer's conduct. The lapse of time between the seminal event and the employee's resignation belied his claim that the employer's conduct caused the intolerability. His own testimony during the arbitration (as to what was actual the cause of the breakdown) also proved to be his undoing.
There are arguably many morals to be taken from the above story. From an employment law perspective, the judgement again confirms that our courts and tribunals will not merely accept the employee's contention that the employer's conduct caused an intolerable situation. Employees should act with trepidation before they resign and claim that they were constructively dismissed. Addressing the underlying causes for workplace unhappiness while still in employment often proves to be more effective than seeking relief after resigning.
Botes is a Partner with Baker McKenzie.