Constructive Dismissal, "A Claim In The Shadows"

• Published date: 18 September 2023
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals
• Law Firm: Zenas Chambers, ChimwaMurombe Legal Practice
• Author: ChimwaMurombe Legal Practice

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...