How to Prove Constructive Dismissal at the CCMA
Has office politics become so hectic that you feel that you have no choice but to resign? Or, did your employer offer you two months of severance pay because they can’t afford your services any longer, without following the retrenchment process? If this doesn’t sound fair to you, it’s because it’s not. This is what is known as constructive dismissal, and it can get employers into some serious trouble.
What Does Constructive Dismissal Really Mean?
Section 186 (1) (e) of the Labour Relations Act says that “constructive dismissal” means that an employee terminated a contract of employment because of the employer’s conduct. Whether the employer manipulated the employee into resigning or the employer made the working environment hostile and intolerable for the employee – constructive dismissal is treated the same as unfair dismissals, which means that should the employee take the employer to the CCMA, the employee will be entitled to compensation in terms of the Labour Relations Act (LRA). If you’re still in the dark about constructive dismissal, here are some good examples:
- Falsely accusing the employee of misconduct or of incompetence.
- Sexual harassment or public humiliation in front of other employees.
- Placing the employee in a difficult work situation without supporting their decision.
- Sabotaging or changing the employee’s job responsibilities.
- Changing an employee’s job location at short notice.
- Undue demotion or disciplinary procedures.
- Vandalising the employee’s workspace, home or other personal property.
- Victimisation or bullying of the employee.
Unfortunately, in the world of business, there are many dishonest employers and employees, and this is why the BCEA, LRA and the CCMA exist. Founded on the principle of conciliating before arbitrating, the CCMA is an independent body established by law to carry out a range of workplace dispute preventions and resolutions. Largely due to word of mouth, employees at all levels are aware that, for little or no cost, they can bring a case against an employer who has treated them unfairly. In fact, in addition to the thousands of cases handled by the Labour Court, Labour Appeal Court, bargaining councils and private arbitration forums – the CCMA deals with over 100 000 cases relating to unfair labour practices each year.
5 Things Employees Must Prove to Win Constructive Dismissal at the CCMA
Today, work disputes can take many forms, but none are as serious as abuse, assault, forced transfers, sexual harassment, demotion, and failure to pay a salary to an employee. In many cases, employers are very quick to turn around and deny the charges, and this is where the employee must prove that the behaviour was unfair. In order to convince a CCMA arbitrator that constructive dismissal has in fact taken place, an employee must prove the following:
- The circumstances were so intolerable that the employee could truly not continue to stay on.
- The unbearable circumstances were the cause of the resignation of the employee.
- There was no alternative at the time, but for the employee to resign to escape the circumstances.
- The unbearable situation must have been caused by the employer.
- The employer must have been in control of the unbearable circumstances.
The reality is that anyone can end up at the CCMA headquarters, which is why you need to arm yourself with labour law professionals who can offer you CCMA legal assistance in dealing with workplace issues, such as constructive dismissal.
Free Legal Consultation for Exploited, Unfairly Dismissed or Victimised Employees
Registered as specialised labour lawyers with the Law Society of South Africa, we are a law firm that specialises in labour law and employment law. Taking great pride in our specialised labour law services, not only do we have the expertise, understanding and compassion needed, but we also have the legal muscle to deal with every type of workplace matter, and have acted in numerous high-profile cases throughout South Africa.
Boasting a formidable reputation complemented with the backing of an exceptional team of attorneys and paralegals – not only do we provide employers, employees, trade unions and employer organisations with legal advice, representation in the CCMA, Bargaining Councils, Labour Court and Labour Appeal, but we also offer FREE legal consultation for exploited, unfairly dismissed or victimised employees.
For more information on constructive dismissal and how we can assist you at the CCMA with your case – contact us at reception@www.allardyce.co.za or on 011 234 2125 today.
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.
