Constructive Dismissal: Forced dismissal

Constructive dismissal| A constructive dismissal is a forced resignation, it means that the employee resigns and claims that the reason for the resignation occurred not because the employee wanted to leave but as a result of the employers' intolerable actions.

Constructive dismissal, what is it and how to prove it?

Constructive dismissal- Forced dismissal

When it comes to a constructive dismissal it is firstly important that we understand exactly what a constructive dismissal is.  An employee cannot claim a constructive dismissal purely because they don't like their boss, the forced dismissal must be real.

What is a constructive dismissal?

A constructive dismissal is defined as a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee to such an extent that the employee has no other option but to resign.

A constructive dismissal means that the employee resigns and claims that the reason for the resignation occurred not because the employee wanted to leave but as a result of the employers' intolerable actions. Due to the fact that the employee alleges that the resignation was involuntary and was intentionally or unintentionally coerced by the employer, the resignation becomes a constructive dismissal.

A Constructive dismissal is a "forced resignation"

A constructive dismissal is also known as a "forced resignation", in terms of the Labour Relations Act Section 186 (3) the employer made the continued employment so intolerable and unbearable for the employee, leaving the employee with no other alternative other than to resign. This termination can be with or without notice.

The test to prove a constructive dismissal when resigning is that there must have been no other motive for resigning. In essence that the employee would have continued the employment relationship indefinitely had it not been for the employer's unacceptable conduct. It must be proved that the employer's behaviour, therefore, repudiates the employment contract  and that the employee terminates the contract due to this behaviour.

It is the responsibility of the employee to prove that the employer was responsible for the intolerable condition. The employee must prove that there was no other way of resolving the issues except for resignation. All internal procedures must have been exhausted in an effort to rectify the situation before resorting to resignation. The onus is on the employee and not the employer to establish the fact of dismissal. It has to be proved that the conduct of the employer was unfair or unlawful or both and that resignation must have been the absolute last resort and was the only reasonable option left to the employee.

To convince a Judge or arbitrator that an unfair constructive dismissal has taken place, the employee must show:
  • The employment circumstances were so intolerable that the employee could truly not continue to stay on and continue the employment relationship.
  • The unbearable and intolerable circumstances were the cause of the resignation of the employee.
  • There was no reasonable alternative at the time other than for the employee to resign to escape the circumstances.
  • The unbearable situation must have been caused by the employer.
  • The employer must have been in the control of the unbearable circumstances.

Examples of a constructive dismissal include where an employer created or varied the employees original terms and conditions of employment in an adverse way or unilaterally without consulting the employee or the failure of an employer to investigate and protect an employee from sexual harassment in both instances leaving the employee with no other reasonable option other than to resign to escape the situation.

Although each case of constructive dismissal is judged on its own merits, each case will be judged objectively and not on emotions. Employees must know that they are responsible for proving that the constructive dismissal exists and employers must be aware of their behavior and the way in which they handle employees. Employers should consult professional advice before acting on any matters that may affect an employment contract to avoid constructive dismissal disputes.

On that note an employee cannot claim UIF if they are not able to successfully prove a constructive dismissal; the resignation will be considered as voluntary. Make sure your reason for resigning is your last option.

An employment contract should be read in its entirely before being accepted. It is important to understand who is considered an employee and what the difference is between permanent, fixed term and an independent contractor.

The restraint of trade clause prohibits an employee from engaging with direct competitors or from competing with the business of the employer for a specific time period and within a certain geographical area.

The Basic Conditions of Employment Act is put in place to ensure the right to fair labour practices for employers and employees in South Africa. The Act form part of every contact of employment in South Africa and represents the minimum standards.

The Labour Relations Act is put in place to protect everyone in the workplace. The Act applies to workers, employers and trade unions and aims to protect their rights within the workplace.

How much notice must you give your employer and what is the difference between a 30 day notice period and a calendar month notice period.

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