When Can an Employee Resign and Claim Constructive Dismissal?
Have you resigned because your employer has made the workplace as unbearable as possible to force you to resign? Was the situation intolerable to such an extent that you felt it impossible to stay at the job? If so, you may have sufficient grounds to claim compensation from your employer for constructive dismissal.
The above said, constructive dismissal is extremely difficult to prove, and the success rate for such is rather low. In the most basic form, constructive dismissal is where an employee resigns because of the employer’s actions, which have made the employment relationship intolerable.
Requirements for Constructive Dismissal
For it to be constructive dismissal, certain requirements must be met. For one, the employment circumstances must have been intolerable to the level where it would have been extremely difficult for the employee to have stayed. The specific intolerable situation must have been the reason for resigning, and the employee must have had no other alternative to resolve the issue. The employer must have caused the intolerable situation and must have been in control of the situation.
Constructive dismissal can be claimed whether the employee resigned with notice or without such. However, the arbitrator also considers the level to which the employer’s conduct met the requirements. Even if the employee, in theory, could have remained in employment and simply have referred the dispute for resolution to the relevant tribunal, if the situation was so intolerable that the employee could not have stayed employed even if the dispute was resolved, then constructive dismissal can apply.
However, it is extremely important for an employee to rather seek labour law council in referring a dispute before taking the step of resigning because of the intolerable workplace as the result of the employer.
Is it possible that an employer could have caused the situation in order not to have to go through the disciplinary action procedure to deal with a difficult employee? Yes, but what if the employee did perform in terms of job requirements and what if the employee was not guilty of misconduct? In such an instance, an employer, in theory, would have applied pressure to force the employee to resign.
Unfortunately, the onus is on the employee to prove that the requirements of constructive dismissal have been met. To this end, we strongly recommend making use of our services in order to seek compensation.
An employee could also have resigned in order not to appear at a disciplinary hearing for misconduct. With many factors to consider, such as whether the disciplinary actions were unfair and part of the employer’s attempt to force a resignation, the arbitrator has a difficult task at hand in determining if the resignation was constructive dismissal.
An example of an intolerable situation is where the employer reduces the salary of an employee, changes the workplace rules to make it difficult for the employee to be on time for work, and gives the employee job duties far below the employee’s skills level. Such may not be intolerable alone, but if the employer also creates an unpleasant work environment, ignores requests of the employee, overlooks the employee for promotion, and more, then there may be a reason for resignation. However, if the employee can have the issue resolved through the referral of the dispute, then the employee still has an alternative to resignation.
Call us at 011 234 2125 for assistance to determine whether your particular case meets the requirements of constructive dismissal. If you have not resigned yet, rather make use of our labour law guidance on how to deal with the situation as opposed to simply resigning.
NB: this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.