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Constructive Dismissal

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Constructive dismissal, or what is referred to as “forced resignation,” is a somewhat misunderstood concept. Employees are of the opinion that they need merely resign in order to refer a matter of constructive dismissal. This misunderstanding in conjunction with the difficulty in meeting the evidentiary burden is a huge contributory factor in the failed cases, from an employee’s perspective.

Constructive dismissal as grounds for dismissal finds its statutory base in section 186 (1)(f) of the Labour Relations Act –
“Or an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

Constructive dismissal can only occur where the employee resigns or repudiates the contract because they have no choice due to the employers conduct. The resignation need not be formal. Constructive dismissal could be proven even where the employee has left their employment in circumstances, which would normally be deemed absconding. However, if the employer has told the employee to “F&*k off”, and the employee does not return to work, it is most likely that this would constitute a dismissal in the ordinary sense rather than constructive dismissal.

The burden of proof lies with the employee who must show that –
• The employer rendered the continuance of the relationship as intolerable
• The employee exhausted all internal processes in an effort to rectify the situation, before resigning.
• The conduct of the employer was unfair, unlawful or both.

The employee needs to provide hard evidence that the conditions were intolerable. A perception that there was unfairness will not suffice. Working conditions that were stressful, difficult or unpleasant will not justify a resignation and a claim. Managers in particular may have a more onerous task in that they are expected to endure conflict in relationships, power struggles, office politics and such situations.

Some circumstances will, by their very nature, prove to be intolerable. Sexual harassment claims that are unattended or where payment of salary has not been made will inevitably be deemed intolerable. These acts of the employer tend to satisfy the burden of proof of their own accord. The burden to produce evidence is often the downfall of most claims. A large amount of orchestrated constructive dismissals are based on changes in treatment, victimization or harassment and oft of a subtle nature. A manager may greet every member of staff except the victim or deny ad hoc leave requests. These acts are in a manner that does not provide solid or concrete proof or can be explained away. Furthermore the complainant would then be reliant on his former colleagues to provide evidence of change in treatment or attitude towards the dismissed employee. This provides a huge stumbling block, as the colleagues are hesitant to testify or tend to testify in a vague and unhelpful manner.

Unilateral variations of employment conditions will not in themselves justify a claim of constructive dismissal. The variation must be of such a nature that it goes to the root of the employment relationship or that it evinces an intention, by the employer, to end the contract.

The second ground on which the employees’ case falls down is the failure to exhaust all internal processes. This is highlighted in the common situation where the employee has a disagreement or is screamed at by the boss, resigns and then claims constructive dismissal. Giving the employer an opportunity to address the issues and to remedy the situation is integral to a successful case. However, an internal grievance is not an essential requirement where it is clear that management is prejudiced against the employee. This of course is dependent on the facts and the employee will need to bring the proof to the table. Where the employee could reasonably have followed a grievance procedure regarding the cause of their unhappiness, it will be difficult to convince a court that they had no option but to resign.

Employees who feel victimized or unfairly treated are advised to address the issue through the relevant channels before resigning. The employer, in turn, should, from both a management and legal perspective, attempt to resolve the underlying issues and record such action whilst being very mindful of manipulation and vexatious proceedings

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  1. Dave A's Avatar
    Thanks Anthony. Very informative

    The issue of pursuing internal processes was particularly enlightening to me.
  2. wesselskathy's Avatar
    Constructive Dismissal has apparently only a 5% chance of being granted. Failing which you could be liable for legal costs. Apparently success is greater the average outside Cape Town and Johannesburg where its lower.