Constructive Dismissal, Legal Advice...please

[adrianh]

No, they didn't fire him, they said that they were going to lay charges with the police. I bet you that if it went to the CCMA they will simply say that he shouldn't have resigned out of fear for case being laid with the police if he is innocent. He reacted impulsively and screwed himself. Whether what you say is true or not, I still mantain that the management will simply say that he resigned of his own free will. There is no way in hell that the company will entertain such nonsense after the fact. If it was me, (as the employer) I would simply laugh it off!

[Dave A]

So basically they had nothing accept to scare him with "going to the police".

Exactly.

So why did he resign?

[tec0]

Exactly. So why did he resign?

Well for the most part I am not a mind reader so I wouldn't know But that said, if he has something to hide then so be it. If not it is only human to be afraid to be raped in a holding cell? Honestly if you where you and you had to face a night in prison where the media made a point to scare the big J out of you would you not rather avoid it?

He had a choice "resign don't get raped in a holding cell" or don't resign and be raped in holding cell while awaiting the judge to set bail. And get HIV in the process AKA a death sentence. It is not rocket science really?

There is no way in hell that the company will entertain such nonsense after the fact. If it was me, (as the employer) I would simply laugh it off!

If your actions as the employer were criminal then you don't get to make those decisions anymore. The court does, and it is very serious actually. Victimisation is really a bad situation to be in.

Fact is "and I presume his innocence I do not proclaim it!" he was pressured. That much is clear "If all details are as it stands"

The argument is:

Man was pressured to resign "fearing for his life"

Evidence produced by employer to force the action "weak at best"

Evidence to the contrary include; no physical evidence, no eye witnesses, no investigation

You cannot just force an action "any action" based on "you think" it is what the employer can proof. And if our information is any indication they may well be toast.

[Dave A]

So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
On what we all agree seems to be flimsy evidence?

Personally, I don't think so - not without some level of investigation first.

[BusFact]

So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
On what we all agree seems to be flimsy evidence?

Personally, I don't think so - not without some level of investigation first.

Actually, its quite common to arrest for theft. Although the responding officer would hopefully use his head and realise that the suspect is well established in the community and can be easily found again. Plus he is a full time, long term employee of the company so they should have all his contact details. His decision will likely be based on how much the complainant pressures him into believing the man is a flight risk.

That said, there is nothing stopping the policeman taking the cautious route and arresting him, and leaving the decision to the courts for bail. Actual police investigation will be days to weeks down the line. Point being that although its unlikely for there to be an arrest, its not extremely unlikely.

The entity at risk here is the company, as being the complainant they might run the risk of being sued in a civil case for wrongful arrest.

Btw. Being arrested is definitely unpleasant, but more so from the humiliation of the event and the feeling of frustration. The instances where it is "life threatening" are extremely rare.

[tec0]

Btw. Being arrested is definitely unpleasant, but more so from the humiliation of the event and the feeling of frustration. The instances where it is "life threatening" are extremely rare.

I agree a 100% with everything you typed out. However one cannot rule out gang rape in a holding cell. There are cases "documented" that people was badly beaten and or raped while waiting for bail. So for someone to imagine he/she will fall victim to the above mentioned is not unrealistic at all. There is an actual possibility that one may fall victim.

Thus allowing a person to become fearful "Regardless of guilt or innocence"

So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
On what we all agree seems to be flimsy evidence?

Personally, I don't think so - not without some level of investigation first.

In all honestly I don't think they would have locked him up on "suspicion" alone. That said consider the following.

As stated above the police officer may play it safe and lock him up.

The employer might have been able to convince the police officer somehow.

The fact is, there is always the possibility for things to go very wrong. And that in itself is a legitimate factor.

In all honesty can this fact be ignored?

[BusFact]

... However one cannot rule out gang rape in a holding cell. There are cases "documented" that people was badly beaten and or raped while waiting for bail. So for someone to imagine he/she will fall victim to the above mentioned is not unrealistic at all. There is an actual possibility that one may fall victim.

Thus allowing a person to become fearful "Regardless of guilt or innocence"

It has happened, but it is extremely rare and tends to make headlines. The cops don't like the bad press so have several procedures in place to prevent such occurences. However that said, it is a very real fear (justified or not) which may well have affected his decision making.

[tec0]

It has happened, but it is extremely rare and tends to make headlines. The cops don't like the bad press so have several procedures in place to prevent such occurences. However that said, it is a very real fear (justified or not) which may well have affected his decision making.

I agree, fear is a powerful emotion and does play an active role in every decision we make. In my opinion I feel it might have been a deciding factor. Again I do not proclaim his innocence; I only wish to highlight the possibility.

Regardless it makes for an interesting case and a good read for any employer.

[adrianh]

Ok, but he still made the decision to leave. It was his choice!

[sterne.law@gmail.com]

Constructive dismissal requires conditions that are unbearable and intolerable - this has not occurred.
Resigning, pending a disciplinary hearing is not constructive dismissal.
These two factors make a referral in terms of constructive dismissal, a route that is unlikely to be successful.

Can it be referred as a normal dismissal? There is effectively no dismissal because there was a resignation, albeit under duress. To put it into perspective, where there is a settlement agreement, CCMA has no jurisdiction becuase there is a mutual agreement to termination, that is no dismissal. Many settlements are done under duress, "here is your cheque, which I will give you if you sign here" as an example. So despite the duress, the settlement stands and the employee needs to go to Labour Court for it to be struck down.

It becomes hard to validate a persons defence that I was scared etc, if you now refer a matter, claiming duress, becuase in essence the employer still has the threat, of reporting to the police.

I think it is a hard road, particularly to get past CCMA, but that does not mean do not refer the matter, you deal with road blocks when you get to them.
The other angle is to try and argue that one is still an employee, based on the fact that the resignation is void and not valid due to the duress. How to refer it is a bit trickier, possibly as a mutual interest matter, and in that way try and get it in front of the CCMA and get a ruling.

[sterne.law@gmail.com]

There is some case law and grounds for constructive dismissal when an employee is told resign or face criminal sanction, more particulalry arrest,however it is extremely difficult to get the evidence for this situation. The normal requirements of teh conditions being intolerable and addressing the issues then fall away, so to speak. It now comes to the fact that the employer repudiates the contract and indicates as such. However as I say, it is VERY hard to prove what the employer said, and I would consider finding an alternative route to the constructive dismissal.

[tec0]

I follow, however consider that minutes are kept at each hearing, the minutes must include why the employee was asked to resign. If the minutes have no record of this then what would the argument be for the employer and why else would the employee be asked to resign? Then perhaps an unfair dismissal? Because it was a dismissal in the end? OR will it be seen as a resignation only scenario?

[Dave A]

I follow, however consider that minutes are kept at each hearing, the minutes must include why the employee was asked to resign.

Unfortunately our OP has gone rather silent, but I've got a hunch this never got to a formal hearing stage.

Without feedback, I think we're shooting in the dark trying to come to clear conclusions. An interesting excercise in the various possible scenarios, though.

[tec0]

Agreed, we will probably never know the truth.