Constructive Dismissal and refusal to accept withdrawal of resignation
28-JUN-07
Bester and Marais
[Const Dism]
Case No. FS2955-06
Jurisdiction: Bethlehem
Commissioner: MC van Aarde, Commissioner
Subject: Constructive Dismissal
Issue:
The applicant resigned her employment. She attempted to retract it. When her employer would not allow her to withdraw the resignation, she made application to the CCMA on the grounds that either she had been constructively dismissed (because of a comment that caused the resignation) or that the employer’s unwillingness to agree that the resignation could be withdrawn amounted to an unfair labour practice.
Summary of Facts:
The applicant resigned her employment after remarks were made to her by a supervisor that she considered inappropriate. The remarks were that she was the ‘wip’ of her supervisor (an attorney). Her evidence was that she viewed being called “Van Rensburg’s ‘wip’ as having a negative (sexist) meaning being “the w**** or slut of Van Rensburg”.
After the resignation the
applicant approached her employer on two occasions to ignore
the resignation but it would not do so.
The applicant claimed that the failure to revoke the
acceptance of the resignation was unfair and constituted an
unfair labour practice. In the alternative, she claimed that
she been constructively dismissed.
Summary of Judgement:
The Commissioner held that the two points on which the applicant based her claim were mutually exclusive. On this point, the Commissioner stated:
‘Generally speaking, in constructive dismissal cases, the employee terminates the contract of employment because the employer has made continued employment intolerable for the employee. Relief in the sense of reinstatement appears to be in contradiction with a claim of constructive dismissal (unless of course if the affected employee could be relocated or transferred to an alternative branch/position away from the source of the dissatisfaction, which is obviously not always possible)’.
In relation to the constructive dismissal claim, the Commissioner noted that the applicant’s two requests to her employer to withdraw her resignation were inconsistent with a desire to leave the services of her employer, which is the very nature of a constructive dismissal. That part of her claim was unsuccessful.
In relation to the unfair labour practice claim, the Commissioner took the view that an employer’s refusal to accept an employee’s request to revoke a resignation does not fall with the definition of an ‘unfair labour practice’. In resigning her employment, the applicant had taken a considered decision and it fell within the respondent’s prerogative to accept or refuse her request to withdraw her resignation. This part of her claim was also unsuccessful.
The application was dismissed with no costs order made.
