Consent and the Failure to Obtain It

A business that is being challenged for variations to contracts of employment must be able to show some legal justification for doing so and to have - in the interest of industrial harmony - to have taken steps to engage employees on the reasons for doing so. Some of these measures typically include “town halls” and internal communications.

Employees disgruntled with this action have the legal right to consider the variation a breach to their terms of employment and pursue remedies for constructive dismissal before the Industrial Court. This usually requires resignation without notice.

In one matter the firm handled (Writ No:A72 NCVC- 1277 and 1278-03/2015), a construction company’s reassignment of employees to a different project following the abortion of its joint venture, resulted in two employees resigning without notice alleging constructive dismissal.

The Magistrate’s Court in finding in favour of the business held that the defendant employees had not been constructively dismissed and that rather they had resigned voluntarily. It also allowed the Plaintiff company’s claim for two months' salary in lieu of notice as per the contract employment.

Obtaining consent is never easy yet legally required. Going about procuring the consent is where the secret lies. Have you had these challenges? We’d love to hear from you.

Email us at [email protected] to ask for more information or share your experience.