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Constructive Dismissal

The dismissal is said to be ‘constructive’ in the sense that the
actions of the employer have the practical effect of terminating the
employment relationship that had been in existence, as opposed to
an express termination involving the employer telling the employe ‘your employment is hereby terminated and to be effective either
at the stipulated time or immediately’ or words to that effect. This
is where the employer fundamentally breaches the employee’s
contract of employment or treats an employee in such a way that
he/she is entitled to resign – the employee leaves their job due to
the employer’s behaviour.

Hence, the test for constructive dismissal is the contract test. In
applying this test, the question to ask is whether the conduct of the
employer was such that they were guilty of a breach going to the root
of the contract or whether they have evinced an intention no longer
to be bound by the contract. If the answer is in the affirmative, then
the employer is said to have repudiated the contract of employment
and the employee would be entitled to regard himself as having
been constructively dismissed. The employer’s wrongful conduct
must have amounted to a fundamental breach of contract where
a reasonable person would be able to conclude that the employer
had evince an intention not to be bound by the contract any longer.
The employee can regard himself as having been dismissed and
resigned from employment without serving notice and thereafter
alleging unfair dismissal.

After considering the totality of the evidence, the court will decide
whether or not the claimant has discharge the burden of proof that he
was constructively dismissed. Where the claimant has failed to fulfil
his burden of making out a case of constructive dismissal or where
he leaves in circumstances where these conditions are not met, the
court will hold that the claimant had abandoned his employment or
that leaving the employment was the claimant’s own doing, in other
words, the claimant had voluntarily resigned from his employment.


“While the employee is suspended from work, the employer will proceed to make a proper and thorough investigation into the matter to uncover the truth about the complaints against the employee so that a resolution of the complaint and situation can be achieved. The investigation must be carried out as soon as possible although no timeline is fixed for investigating complaints. Prompt investigation would prove to the employee that the employer cares about their safety in the workplace. In the process of investigation, the employer will record statements from the complainant, the witnesses and the accused, among others. The statements so recorded will have to be studied to determine the validity of the complaint.”


Show Cause

“A Notice to show cause is the starting point for any disciplinary action. The notice will describe the alleged misconduct, set out the specific grounds for the disciplinary action and provide reasonable opportunity to the noticee (recipient of the notice) to furnish a reply to the notice, ie, to present his/her version to justify as to why a disciplinary action shall not be taken. The noticee will generally have to respond to the show cause notice within the specified number of days. The period will be clearly set out in the notice. If the noticee does not respond within the time specified in the notice, a decision may be made and disciplinary action can be taken against the noticee without him having had the opportunity to present his case.”


Pending Investigation

“Pending investigation, the issue arises as to whether the employer is empowered to suspend the employee and if so, whether the employer is obliged to pay the affected employee his wages or salary and the appropriate amount payable. It must be noted, the payment of wages is an essential term of the contract. Any unilateral variation of the essential terms of the contract, if not acceptable by the employee, tantamount to repudiation of the contract. In such a situation, the employee is entitled to regard the contract as terminated and himself as having been dismissed from employment. Suspending an employee pending investigation into the allegations of gross misconduct is part of industrial labour practice. It is the implied right of the employer to suspend an employee during the pendency of investigations. Suspension pending enquiry should be issued only in fit and proper cases and should be done carefully and cautiously and in haste unless it was absolutely necessary.”