Constructive Dismissal

Jan 13, 2017


Employers and employees alike are sometimes confused about what constitutes a constructive dismissal. Employees in particular have a very wrong understanding thereof and they are of the impression that anything they dislike or bad experience in the workplace, is sufficient to resign and claim constructive dismissal.
What then is constructive dismissal?
Most employers want to create a positive work environment for their employees. However, in the high-stress environment that seems an inevitable part of the modern working world, some employees may find themselves in circumstances that they simply cannot tolerate. They then resign to escape. When they do, the employer is at risk of claims of a constructive dismissal.
If an employee’s claims are proved true by the CCMA, he will usually be awarded compensation for both substantive and procedural unfairness relating to his constructive dismissal. This could cost an employer tens of thousands of rands. In fact, the employer may be ordered to pay the employee up to 12 months’ pay as compensation.
However, the onus is on the employee, or in other words, it is up to the employee, to prove the dismissal was constructive.This is different to other claims of unfair dismissal where the employer must prove that the dismissal was fair.
Proving a constructive dismissal is many times rather difficult. An employee must prove the following 5 things in order to have reasonable prospects of winning a constructive dismissal case:
To convince an arbitrator or judge that constructive dismissal has in fact taken place, an employee must show:

  1. The employment circumstances are so intolerable that he cannot stay on;
  2. The unbearable circumstances caused him to resign;
  3. There was not a reasonable alternative at the time and he was forced to resign to escape the circumstances;
  4. The unbearable situation was caused by the employer;
  5. The employer was in control of the unbearable circumstances; and
  6. The employee exhausted the internal procedures in an effort to resolve the issues that caused the alleged constructive dismissal.

Generally, the employment conditions really have to be terrible for the employee to have a strong case. After all, most employers ensure that employees have a means to express their concerns to management and to raise any issues internally first, via the grievance procedure.
It is always a good idea to make sure managers and supervisors have good open communication with employees, so that any problems are dealt with effectively and timeously.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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