To Order or Not to Order Reinstatement as a Remedy for Constructive Dismissal

Kl Kubjana Kl Kubjana,Me Manamela Me Manamela

doi:10.17159/obiter.v40i2.11241

Abstract

The discussion in this analysis focuses only on reinstatement and determines whether it is an appropriate remedy for constructive dismissal given that termination of the contract takes place because of the employer’s intolerable conduct, leaving the employee with no other option but to resign. The discussion considers the concept of constructive dismissal, and reinstatement as a remedy for constructive dismissal in South Africa, and briefly looks at the position in the United Kingdom (UK).

Highlights

An employment relationship can be terminated by either the employer or the employee
Dismissal is the most serious and drastic disciplinary penalty that an employer may impose against the employee (Grogan Workplace Law 140; Basson et al Essential Labour Law 132)
An employee does not have protection against unfair dismissal, the main focus being on the lawfulness of the termination and not the fairness of the termination of the contract (Basson et al Essential Labour Law 97)

Summary

Introduction

An employment relationship can be terminated by either the employer or the employee. Termination by the employee is referred to as resignation (Grogan Workplace Law 12ed (2017) 143; Basson, Christianson, Garbers, Le Roux and Strydom Essential Labour Law 6ed (2017) 100), and termination by the employer is referred to as dismissal and is a common way in which an employment relationship is terminated (Le Roux and Van Niekerk South African Law of Unfair Dismissal 1ed (1994) 83). The employer may naturally give the employee notice informing him or her about the termination of the contract, in terms of section 186(1)(e) of the LRA, the employee may terminate the relationship but allege that the termination was due to the employer who made continued employment intolerable. (e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.” It is the employee who terminates the employment relationship, in this instance, the action is regarded as a dismissal and not a normal resignation by the employee The discussion considers the concept of constructive dismissal, and reinstatement as a remedy for constructive dismissal in South Africa, and briefly looks at the position in the United Kingdom (UK)

Constructive dismissal in South Africa

3 Objective test

Constructive dismissal in the United Kingdom

Evaluation and conclusion