The jurisdictional dilemma
The CCMA is a creature of statute. It does not have inherent jurisdiction and derives its jurisdiction from a proper referral of a case. For a referral to be proper, a prescribed process must be followed, with the observance of time limitations. Substantively, the subject matter of the case being referred to it must fit into the CCMA’s statutory authority and mandate.
A termination of employment occasioned by a genuine resignation (a unilateral uncontested act performed by the employee) cannot be entertained by the CCMA, as the latter will simply lack the required jurisdiction.
It is here where a claimed constructive dismissal faces its very first hurdle to overcome.
On face value, The CCMA would lack jurisdiction to entertain a claim of constructive dismissal, as the matter is “clothed” as a resignation. It is also a common defence of the employer party, opposing the claim of constructive dismissal, to raise a point in limine arguing that the CCMA lacks jurisdiction.
Central to whether the CCMA had the required jurisdiction to entertain a constructive dismissal dispute or not, is determining the true nature of the dispute.
It may happen that the Labour Court is later required to ascertain the true nature of the dispute during a review process. To be able to do this, the Labour Court has to have access to what transpired at the conciliation proceedings regarding the nature of the dispute, but then, conciliation proceedings are conducted on an off the record and without prejudice basis, effectively putting the lid on what transpired at conciliation.
The Constitutional Court (CC) resolved this apparent obstacle to uncovering the true nature of the dispute in the case: Theo September, Dean September, Roland Paulsen v CMI Business Enterprises CC (2018) by pronouncing as follows:
- The true nature of a dispute subjected to conciliation proceedings is not privileged information.
- The particular complexity of the concept of constructive dismissal makes it conceivable that non-lawyers may not always formulate the dispute correctly, thereby not reflecting the true nature of the dispute, hence necessitating subsequent legal scrutiny.
In a normal unfair dismissal dispute, the employee must factually prove the existence of the termination of employment, where after the onus moves to the employer to prove that the dismissal was not unfair.
In a constructive dismissal case, the employee has much more to substantiate in order to give credence to the claim of constructive dismissal.
In this regard the Labour Appeal Court (LAC) laid the following prerequisites at the employee’s door in the case: Solid Doors (Pty) Ltd v Commissioner J P Theron N.O., CCMA & Grant Clapton (2004):
- Proving that the employment contract was terminated by the employee; and
- Proving that the reason for terminating the contract in this way, was that continued employment became intolerable for the employee; and
- Proving that the employer, through its conduct, made continued employment intolerable.
Once the employee has proven the above sufficiently, the termination of the employment assumes the status of a dismissal (constructively, as it were) and the onus shifts to the employer to prove that such dismissal was not unfair. This then also vests the CCMA with the required jurisdiction to entertain the matter.