Non-ratified treaty;¹ Work of international supervisory bodies²

Constructive dismissal/ Establishment of a jurisprudential principle based on international law

The claimant worked for the respondent enterprise as the manager of the Serowe branch  and subsequently as the manager of the Lobatse branch. She was then transferred to the Garborone branch without being informed of the post she would occupy. Once there, the claimant was informed in writing that she would be responsible for cleaning the bathrooms and that this would not affect her salary. The claimant tendered her resignation based on this change of duties, indicating that the changes to her employment relation were a form of constructive dismissal, since she would have continued working for the respondent enterprise were it not for the deterioration in her work duties. The claimant applied for compensation equivalent to 12 months’ wages.

With a view to determining whether this was a case of constructive dismissal and, therefore, whether the claimant had a right to compensation, the Court referred to the ILO Convention, No. 158 – despite the fact that this Convention has not been ratified by Botswana – and the General Survey of the Committee of Experts on the Application of Conventions and Recommendations concerning protection against unjustified dismissal,³ indicating that:

“Under its equitable jurisdiction this Court can bring the principles of Convention No. 158 to bear in this case.  This the Court can do so because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon by litigants to determine […]

Convention No. 158 does not, in any of its 27 substantive articles, refer to or use the term “constructive dismissal”.  But does that mean that Convention No. 158 does not cover instances such as these where clearly the cause for the termination of the employment relationship lay squarely at the Respondent’s (the employer) door?

Article 3 states that: ‘For the purpose of this Convention the terms termination and termination of employment mean termination of employment at the initiative of the employer.’

[…] At paragraph 22 of the General Survey the following is recorded as the position taken by the said Committee of Experts: ‘Certain changes introduced by the employer, in particular as concerns conditions of employment and which do not arise out of genuine operational requirements, might place the worker under pressure either to accept such changes or to give up his job or incur the risk of being sanctioned for having disregarded the employer’s instructions. It is therefore necessary to be able to verify whether a situation does not constitute a disguised dismissal or a real termination of the relationship instigated by the employer in the sense of the Convention, since otherwise the worker concerned would de facto or de jure be unduly deprived of the protection provided by the Convention.’

[…]If the employer makes the working conditions of a worker so intolerable that the latter is forced to resign, the employer commits what is called in same countries a “constructive discharge” and the worker may take legal proceedings as if he had been dismissed by the employer [...].”⁴

Given the above, and based on the provisions of Convention No. 158 and the 1995 General Survey of the Committee of Experts of the ILO, the Court concluded that in this case a constructive dismissal had taken place and, therefore, the claimant had the right to compensation equal to eight months’ wages for unfair dismissal and 640,000 Botswana pula (BWP) for the unfair treatment she was subjected to. 

¹ ILO Termination of Employment Convention, 1982 (No. 158).

² ILO Committee of Experts on the Application of Conventions and Recommendations.

³ ILO: Protection against Unjustified Dismissal General Survey of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 82 Session, Geneva, 1995.

⁴ See pages 10, 11 and 12 of the decision.