By Cecilia Brummer of Chennells, Brummer & Associates

CASE SUMMARY: Ramsden / Roche Products - (2013) 22 NBCCI 6.13.1

The employee was subjected to a disciplinary hearing for ‘ghost calling’ but resigned before the sanction was handed down but after she had been found guilty. She then claimed constructive dismissal.

It is confirmed in this matter that there needs to be a direct link (causal nexus) between the conduct of the employer which needs to render the continuation of the employment relationship intolerable. In this matter the Applicant stated in her resignation letter that

she had “thoroughly enjoyed” working for the respondent; further also that she would withdraw her letter of resignation if the sanction of the chairperson is something less than a dismissal.

The burden of proof (onus) still rests with the employee to prove that the conduct of the employer was of such a nature that s/he had no other option but to resign. The employee was thus unsuccessful with her application.

Counter indicators for constructive dismissal to succeed:

  • Wording such as `thoroughly enjoyed’ working of the company (or similar phrasing)
  • Working out the notice period
  • Enjoying a farewell party
  • Attempting to withdraw the resignation