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In the recent case of Drakenstein Local Municipality vs Matjan the employee resigned after his manager verbally attacked him in a meeting. Without lodging a grievance the employee resigned the next day. His reason for failing to lodge the grievance was that he believed it would be held against him. He brought no proof to corroborate this belief and therefore lost the case on review at Labour Court.
Had the employee provided solid proof that lodging a grievance would have been held against him and that the attack he suffered at the said meeting had been unjustified and vicious, would that have excused him from bypassing the grievance process before lodge a dispute for constructive dismissal to the relevant bargaining council?No, it would not have excused him from bypassing the internal dispute resolution procedures before resigning. The purpose of the grievance procedure is to first exhaust all internal channels before referring a dispute externally to the Council. This is regardless of whether he thinks it would be futile to do so. It would defeat the purpose of the grievance procedure if an employee could simply rely on his or her subjective opinion to bypass the procedures.
Ironically, it would have helped Matjan in the grievance hearing if he had produced tangible evidence, say in an email, that his employer had threatened to punish him if he lodged a grievance. And it would have been compelling evidence in his subsequent constructive dismissal case to show that he was forced to resign due to intolerable working conditions.
Thank you for the 100th milestone and the suggestion of bypassing internal processes. I’ve read the input from Patrick and tend to agree with him. It becomes very difficult to prove that the only route the employee could have taken was to resign. There are clearly other routes such as the internal mechanism and or referral to external dispute resolution bodies such as the CCMA.
In essence a person relying on constructive dismissal has to show that the behaviour evidenced by the employer was so egregious that no one could have been expected to stay in the employ and this must be coupled with the fact that there was no other reasonable route that that employee could have followed.
Therefore I strongly believe that the scenario painted is definitely not a constructive dismissal.
Although an employee is not legally obliged to exhaust internal remedies before claiming a constructive dismissal, the employee must prove that resignation was the only viable option which includes showing that internal grievance procedures were exhausted or would have been futile. In the absence of evidence proving the latter, proving that resignation was the only viable option will be difficult.
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