Section 186 (e) of the Labour Relations Act allows an employee that resigns because the employer "made continued employment intolerable for the employee" to claim compensation from his/her employer. However, when Northern Transvaal local organiser, Onismas Sekome Tshoga, saw that an employee could use this section, he discovered that using it was not necessarily the right way to go.
The worker concerned was a Numsa shop steward and a woman. The employer was a union-basher who was racist and arrogant towards the union and its members. Because of the active involvement of the shop steward in the union, the employer decided that the only way to deal with her and the union was to intimidate, victimise and discriminate against her. She was also subject to death threats.
After this unacceptable conduct by the employer, I wrote numerous letters to the employer confirming what he had done to the woman. I demanded that he must refrain and apologise to her for all the wrongdoing against her because it was contrary to the spirit of the LRA.
Instead of heeding to my demand, the employer responded by physically assaulting the woman in front of other employees.
I could have opened a criminal case against the employer, and she could have resigned and claimed compensation for constructive dismissal. However, I advised her against both actions.
Remedy of constructive dismissal – Sect-183(e)
In terms of this section, in the event of constructive dismissal, the employee may not be re-instated, but only compensated if the employer's conduct is found to be unacceptable and/or intolerable.
The problem with this section is that it prescribes to the arbitrator how to calculate the amount for compensation. And this is where the Act has a weakness.
Compensation is linked to what the worker was earning on a weekly/monthly basis at the time of the resignation. It is paid as from the date of dismissal to the date on which the arbitration hearing takes place, up to a maximum of 12 months.
So if she was earning R250 per week and should the arbitration hearing have taken place within two months from the date of dismissal, she would only have been entitled to R2000 as compensation, with no prospects of finding alternative employment.
Moreover, R2000 is a very small amount, the employer would not even have felt it. And the employer would have achieved what he wanted – to get rid of the employee!
This is why the worker chose not to take this route because she was the breadwinner in her family.
Instead we sought and won urgent relief from the Labour Court . In terms of the judgement, the employer was instructed not to intimidate, victimise, discriminate, racially insult any of the union members, the woman herself, the union official and the office bearers of the union. The employer was also forced to drop a disciplinary hearing against the same woman, where she was charged with assaulting him.
I hope my critical analysis of this provision can help us all deal with cases in a more constructive way to benefit the members we are representing on the shopfloor.
Section 186 (e):
"an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee."
Before deciding to take a constructive dismissal route, ask these questions:
What do you want to achieve? What will be the amount to be compensated, if any? Will the employer feel the punishment? Who will be the biggest loser in the case – the employer or the worker?