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Doctrine Of Constructive Dismissal

Section 12B (3) (a) of the Labour Act, Cap 28:01 states that an employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.

 This is the statutory definition of the doctrine of constructive dismissal.

In Astra Holdings (Private) Limited v Peggy Kahwa SC 97/04 the court stated the principles governing constructive dismissal as follows:

“Constructive dismissal is claimable where an employer has committed conduct which as a breach goes to the root of the contract of employment so as to constitute repudiation and by reason of that conduct the employee leaves employment.  In Western Excavating v Sharp [1978] 1 ALL ER 713LORD DENNING at 717 d – f said:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.” (My underlining)

It must be stated that proving constructive dismissal is not a stroll in the park as the courts have set the bar very high. It is not enough to show merely that your employer has behaved unreasonably. There must be a fundamental breach of an express contractual term, or the implied term of “trust and confidence”. Furthermore, you must have left because of the breach, and you should make it clear when you resign that you regard yourself as having been “constructively dismissed”.

Examples of breaches of contract by an employer entitling an employee to claim constructive dismissal include unjustified and unilateral change of conditions of service like demotions.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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