How Does Constructive Dismissals Work?
Constructive dismissals differ from unfair dismissals in the sense that employees resign, whereas with unfair dismissals, the employees are dismissed in an unfair manner or for unfair reason(s).
Though the employee resigned and it may seem as if the employer doesn’t have any further obligations other than the letter of service and payment of the relevant remuneration and benefits, in the instance of a constructive dismissal the employer is guilty of intolerable conduct leading to the resignation of the employee.
If the employee alleges that they had to resign because the employer’s actions made it impossible to keep working at the particular employer, the term for such is constructive dismissal. The resignation of the employee was thus coerced, whether the employer did so on purpose or unknowingly.
The employee has the responsibility to convince the court or the arbitrator that the employee would not otherwise have resigned. Evidence must be sufficient to show that the employer made the work circumstances intolerable and thereby leaving the employee with no other choice than to resign. The situation must be the result of the employer’s actions and not that of the employee or co-workers, and the employer must have been able to change the circumstances through their actions.
Constructive dismissal wasn’t originally part of the Labour Relations Act. The concept came from case law and it was only in included in the LRA of 1995 where an official definition of such was stipulated. The definition explains it as termination of the employment contract by the employee, whether with the appropriate notice period or without such as the result of the employer’s actions making the work environment unbearable for the employee.
Note that the actions of the employer don’t always allow for sufficient grounds to claim compensation for constructive dismissal. The circumstances surrounding the termination of employment and the extent of the employer’s contribution to such must be considered. It must also be noted that the employee must have seen no rational alternative to the situation and therefore chose to resign. The employee could have referred the issue to the CCMA or a relevant bargaining council, but failure to do so doesn’t mean that resignation doesn’t meet the criteria for unfair dismissal.
In the above instance, it must be decided whether the employee could have followed the route of referring the issue to the CCMA or a tribunal and not immediately resign, while the issue was being decided. If the circumstances of employment became so intolerable that the employee could not be expected to stay in employment while the issue was being decided, the resignation still meets the criteria of constructive dismissal.
If an employee resigns because of the notification of a disciplinary hearing that is pending because the employee wants to avoid the disciplinary hearing and the possible outcomes thereof, the resignation of the employee cannot be taken as constructive dismissal. That being said, if the circumstances leading up to and surrounding the disciplinary hearing are intolerable and the employer acts in such a manner as to make ongoing employment unbearable, then the resignation of the employee can meet the requirements for constructive dismissal.
An example is where the disciplinary action is unfair and the employer initiates the action to force resignation. Another possible situation can be where the employer changes the payment structure of the employee from a monthly salary to strictly commission and this makes it intolerable to still perform the same work as the commission payment is far below that of the salary that the employee has earned previously at the same employer. If the employer has changed the salary structure to commission for disciplinary reasons then the action may constitute making the work circumstances intolerable, provided that the other requirements for constructive dismissal are also met.
Resignation can be the result of one action from the employer or it can follow after several incidents or a combination of factors to which the employer has directly contributed to make working at the employer unbearable.
With it not being a straightforward labour issue, but a rather complex one which may be difficult to prove, it is recommended that you seek legal guidance from our labour law attorneys on the issue before taking steps to resign because of unbearable work circumstances.
Get assistance by contacting Allardyce & Partners at reception@www.allardyce.co.za or call 011 234 2125.
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.
