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Constructive Dismissal

The term Constructive Dismissal originated from the idea that such a resignation when submitted under duress can be seen to have been "constructed" or "created" by the employer.

Therefore, it can be defined as “Resignation caused by an employer deliberately creating intolerable working conditions for an employee which eventually forces the employee to resign from their job”. 

Five Points to Proving Unfair Constructive Dismissal 

An employee must be able to prove that their dismissal was constructed in the following points:

  1. Their working environment was so intolerable that they truly could not continue working at the establishment.
  2. The awful working conditions were the cause of their resignation.
  3. The only option they had was to resign from their job to escape these circumstances.
  4. The intolerable working conditions were deliberately caused by their employer.
  5. The employer was entirely in control of the unbearable circumstances.

It’s important to note that the questionable acts of an employer will not always constitute unfair constructive dismissal. This depends on the extent to which the employer’s behaviour aligns with the 5 points outlined above.

With that said, when comparing an employer’s conduct to the above points, employers must be cautious with their interpretation.

Point number 3 states that the employee has no other choice other than to resign, however, this point cannot be simply interpreted. For example:

  • Theoretically, an employee always has the option of remaining employed and rather referring an unfair labour practice to the CCMA. 
  • Similarly, when an employee fails to do so and chooses to rather resign, it does not always mean that they have failed point 3.
  • Instead, passing point 3 largely depends on whether it was reasonable to expect the employee to instead refer the unfair labour practice dispute and remain employed by their employer following the dispute. Truly unbearable conditions would make such a route unreasonable. 
Employees must be equally cautious with their interpretations of the law

For example, when an employer notifies an employee of a disciplinary hearing, this could genuinely be unbearable to the employee. Resigning to avoid a disciplinary hearing is unlikely to constitute unfair constructive dismissal.

However, if it can be proven that disciplinary steps have been taken unfairly rendering employment conditions intolerable for the employee, this can constitute constructive dismissal. 

Van Deventer & Van Deventer Incorporated – Attorneys South Africa

It is always advisable to seek legal advice when it comes to labour law. Each situation is unique and therefore without serious consideration of all the impacting factors there can be no finite answer.

Our attorneys are ready to provide expert legal advice and support with regards to labour law and constructive dismissal. 

We aim to ensure that both employees and employers know and understand their rights and limitations according to the relative legislation. For assistance with unfair dismissal please contact us.

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