Understanding Constructive Dismissal

constructive dismissal

Constructive Dismissal is defined in Section 186 of the Labour Relations Act (“the Act”) which sets out the meaning of dismissal in terms of the Act. Due to the numerous types of dismissals, this article will focus solely on Constructive Dismissal. Constructive Dismissal is particularly defined in section 186 of the LRA at subsection (1) (e) as an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. From the definition, one will immediately note that for a Constructive Dismissal to occur, the Employee would have needed to terminate a contract of employment.

 

Termination of a Contract of Employment by the Employee

An Employee would need to terminate a contract of employment by terminating the employment relationship via resignation in order for Section 186 (1) (e) of the Act to apply. Further, the reason for resignation must be that the Employer made continued employment intolerable for the Employee. Accordingly, Constructive Dismissal cannot be claimed by an Employee who resigned for other reasons, including but not limited to, finding alternative employment, deciding to pursue a different career path or venturing into the world of entrepreneurship. Resigning for the aforementioned reasons have no basis in a Constructive Dismissal claim. The core reason, as per the definition set out in the Act, is that an Employee would have needed to resign for reasons stemming from an Employer making any continued employment intolerable for the Employee.

 

Intolerable circumstances created by an Employer

Employees more often than not complain about various aspects of their employment. However, mere complaints about aspects of their employment, or their Employer, or their duties and tasks as an Employee does not automatically mean that the Employer is making continued employment intolerable for the Employee. For a Constructive Dismissal to occur, the Employer must have created an intolerable working environment to the extent that the Employee has no alternative but to resign. Examples of an Employer making continued employment intolerable for an Employee could include, amongst others, assault, sexual harassment, failure to pay the Employee’s salary, humiliating Employees in the presence of other Employees and victimizing or bullying an Employee. Despite these examples having potential separate claims in their own right, they can and often do form the basis of a Constructive Dismissal claim.

 

Elements required to prove a Constructive Dismissal claim

The Commission for Conciliation, Mediation and Arbitration (“the CCMA”) has provided an in-depth information sheet on its website setting out the elements which an Employee would need to prove in order to be successful in claiming Constructive Dismissal at the CCMA.

An Employee will have to prove the following at the CCMA on a balance of probabilities in order to be successful in a Constructive Dismissal claim:

  • that the contract of employment was terminated by the Employee because of the Employer’s conduct and not for any other reason (as mentioned hereinabove);
  • that the reason for the termination of the contract was that continued employment became intolerable for the Employee; and
  • that it must have been the Employer of that Employee who made the continued employment intolerable.

 

Internal Grievance Procedures

Employees tend to struggle to prove Constructive Dismissal claims in circumstances where they did not exhaust all internal avenues in respect of grievance procedures and policies set in place by the Employer for Employee complaints or lodging of grievances by Employees. The CCMA has similarly advised, in their easy to read Constructive Dismissal information sheet on the topic, that an Employee needs to show they had attempted to resolve the intolerable situation prior to resigning. Of course, this is not always possible in small businesses or workplace environments where there is no Human Resources Department or Human Resources support structures put in place, and where often the Employee is the sole Employee of the Employer. Furthermore, it must be noted that the intolerable situation may be one event, such as sexual harassment or assault, or a number of events that have taken place over a period of time, such as public humiliation.

 

Referring Constructive Dismissal Disputes to the CCMA

Employees are often not aware of the timeframe provided by law within which to lodge a Constructive Dismissal claim with the CCMA. Most importantly if the timeframe is missed, the Employee will have to apply for condonation for the late referral, the result of which may mean that the Employee’s claim will be rejected. To avoid a situation where an Employee’s claim is rejected due to being out of time, the Employee must refer the Constructive Dismissal dispute to the CCMA within 30 (thirty) days of the date of resignation of the Employee. The Employee must complete what is called a 7.11 Referral Form which can be easily downloaded from the CCMA website at http://www.ccma.org.za/Advice/CCMA-Referral-Forms and thereafter serve the Referral Form on the Employer. Once the Employee has served the Referral Form on the Employer then the Referral Form must be served on the CCMA attaching proof of service on the Employer.

 

Conclusion

Should an Employee be successful at the CCMA in proving a Constructive Dismissal occurred, the Commissioner who arbitrated the dispute may award the Employee up to 12 (twelve) months compensation, alternatively reinstatement if requested by the Employee. Employees’ should, however, be wary of requesting reinstatement, lest it shows that the Employee was in fact not in such an intolerable situation that the Employee is willing to return to the Employer.

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