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.