Finally, “that” employee hands in her resignation. There is a collective sigh of relief in the office. But the respite is all too brief. The next thing you know, the employee files a complaint with the CCMA for constructive dismissal. Labour specialists frequently find themselves facing questions about constructive dismissal. Employees want to know whether or not they can claim, and employers ask what steps they can take to successfully avoid or defend a claim of constructive dismissal.

What is construction dismissal? Simplistically, it refers to a situation in the workplace, created by the employer, which makes a continued employment relationship so intolerable that the employee finds him or herself in a position where s/he feels s/he has no other option but to resign. The test is whether the employee would have continued the employment relationship indefinitely had it not been for the untenable working conditions. If the employee claims constructive dismissal, the employee bears the onus of proving that the employer was responsible for the intolerable working conditions, and that there was no other appropriate way of resolving the issue other than resignation.

The CCMA has dismissed many constructive dismissal claims because the applicant failed to prove that s/he was working in intolerable working conditions. Reasons such as being overlooked for a promotion, refusing to grant a salary increase or a bonus, receiving an unfavourable performance appraisal, a personality clash with a colleague, and not receiving the corner office are all conditions that are not generally considered to be sufficient for constructive dismissal. In such instances the employee should have alternative ways of resolving the complaint rather than simply resigning. On the other hand, tactics such as victimisation, intimidation and continued harassment would be considered as conditions that are intolerable.

Employees should be aware of the principles pertaining to constructive dismissal. Similarly, employers are cautioned that, whilst constructive dismissal may be difficult to prove, it is not entirely impossible.

In short, ensure that your Company has General Policies and Procedures of employment that include a suitable Grievance Policy that gives disgruntled staff a way of raising concerns or complaints before the situation gets so intolerable that they walk out – leaving you to contend with the sting in the tail when they charge you with constructive dismissal.

 

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.

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