Workplace Bullying - Can You Claim Constructive Dismissal?

“…it has been suggested that bullying refers to any unfavourable or offensive conduct on the part of a person or persons, which has the effect of creating a hostile workplace environment… In these terms, bullying includes a wide range of insulting, demeaning or intimidating behaviour that lowers their self-esteem or self-confidence of an employee” (quoted in the judgment below)

An employer may be tempted, when an employee resigns, to breathe a sigh of relief and think “great, I got rid of a problem without having to jump through all the hoops of a disciplinary enquiry/retrenchment process”.

Not so fast! One of the protections our law provides to employees is the “constructive dismissal” concept, and every employer and employee should understand what that is, and how it works in practice.


The 3 requirements to establish a constructive dismissal

A recent Labour Court decision sets out the requirements thus –

1. The employee must have terminated the contract of employment, 
   
   
2. The reason for termination must be that continued employment had become intolerable for the employee (to be determined objectively, the employee bearing the onus of proof), and 
   
   
3. It was the employer who made continued employment intolerable. 

Two special needs teachers resign after workplace bullying

• Two special needs teachers were employed by an independent school, registered with the department of education and catering for learners affected by autism spectrum disorder.
  
  
• They resigned on a month’s notice but then asked the CCMA (Commission for Conciliation, Mediation and Arbitration) to declare that they had been unfairly dismissed.
  
  
• The CCMA found on the evidence presented to it by the employees (the employer chose not to attend the hearing nor to lead any evidence) that constructive dismissals had taken place, a finding confirmed by the Labour Court on review.
  
  
• The teachers testified to a litany of bullying behaviour by their employer, such as unauthorised/unlawful deductions from their salaries, unreasonable/unlawful demands on them, use of abusive and offensive language when dealing with them, sexual innuendos, sexual harassment, sexual orientation discrimination, the making of disparaging and derogatory remarks, undermining and belittling them, embarrassing and humiliating conduct, and impairment of their constitutional right to dignity - in front of them and/or their work colleagues and/or in public places. 
  
  
• “In short”, held the Court, “what the evidence discloses is a workplace operated by a narcissistic personality whose offensive and unwelcome conduct had the effect of creating a toxic working environment in which discrimination, degradation and demeaning behaviour became the norm. I have no hesitation in finding that the nature and extent of the workplace bullying suffered by the [employees] was such that for the purposes of [the Labour Relations Act], their continued employment was rendered intolerable.”
  
  
• The end result is that the employer must pay the two employees compensation amounting to four/six months’ remuneration respectively (the Court indicating that higher awards would have been considered if applied for on review), plus legal costs on the punitive attorney and client scale.

Two other things to bear in mind in a constructive dismissal claim were addressed in this matter…


The need to “exhaust all internal remedies” first

“Generally speaking”, as the Court put it, “an employee is required to exhaust all possible internal remedies prior to resigning and claiming a constructive dismissal.” Only where the available channels for raising a grievance “are ineffective or where on the facts it would be futile for the employee to resort to a grievance procedure, an employee is not necessarily precluded from claiming constructive dismissal.”

In this particular case, although the two teachers did not follow the grievance procedures set out in their contracts of employment, the Court held that this channel had not been open to them as the “immediate manager/director” to whom they were supposed to direct their grievances was the very person they were complaining about.

As an employee however, the general rule is this - follow whatever internal grievance procedures apply in your workplace or you could lose your claim.


Is “working your notice” inconsistent with constructive dismissal?

The employer argued that the teachers’ willingness to work out their month’s notice periods was “incompatible with any notion of intolerability of future employment”. Not so, held the Court, the teachers were acting “out of their sense of duty towards the learners in their care, and the need for a smooth transition so as to minimise any harm that might be caused to them.”

Employees should however be careful here - without such special circumstances a willingness to work out a notice period could well be taken as proof that your working conditions are not as intolerable as you claim.