LEGAL MATTERS: Layoffs and constructive dismissal in Covid era

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THE term constructive dismissal relates to a situation where an employee terminates the employment relationship with or without notice. The employee then goes on to allege that the termination was because the employer made continued employment intolerable for them.
The Labour Act provides for constructive dismissal as a form of unfair dismissal in section 12B (3)(a).
The threshold for constructive dismissal is normally that the employer’s conduct must be so serious as to justify the employee’s leaving at once.
The decision to serve a notice period then becomes a matter of choice, but as long as the threshold of seriousness has been crossed, then a case for constructive dismissal can be made.

There are three essential ingredients for constructive dismissal and they are i) whether the employee brought the contract to an end, ii) whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment intolerable and iii) whether the employee had no reasonable alternative other than terminating the contract. The onus of proving these requirements rests on the employee.