CONSTRUCTIVE DISMISSAL  

Every employee has the right not to be unfairly dismissed.  If there is a dispute about the fairness of a dismissal, the aggrieved employee has 30 days to refer the matter to the CCMA or the appropriate Bargaining Council.

Constructive Dismissal  

Constructive Dismissal is a form of statutory dismissal that would be open to scrutiny by the law.  Section 186(1)(e) of the LRA defines constructive dismissal as a dismissal where "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee."  In essence the conduct of the employer gives the employee no option but to resign or repudiate the employment contract.

You should consider carefully whether you want to go this route as to immediately withdraw from the employment contract on this basis;

• can have financial implications as money can be deducted off your salary for your failing to work your notice period;

• can be seen, if you find new employment, as a normal resignation to find better prospects and thereby precluding you from receiving legal redress;

• if you do not find employment, you could find yourself against an employer who would rather delay and fight, then to settle your lawful claim.  You could find it difficult to prove your case against such an employer.

It is advisable to use the employer's Grievance Procedure and seek expert advice prior to repudiating your employment contract on this ground. 

Onus and proof

Where an employee alleges that he/she has been dismissed by way of constructive dismissal, the employee bears the onus of establishing that a dismissal was unfair.   An employee is required to prove that:  

(i) His/her situation had become so intolerable that he/she was unable to work;

(ii) He/she would have continued working indefinitely had the employer not created the unbearable situation;

(iii) He/she resigned because she did not believe that the employer would reform or abandon the pattern of creating an unbearable work environment.

Constructive dismissal on transfer/sale of business

The law provided for the automatic transfer of contracts of employment when the whole or part of a business is transferred as a going concern from one employer to another. If an employee whose contract of employment is transferred with substantially less favorable conditions or circumstances of work, this would constitute a constructive dismissal. The employee will have to prove that the conditions or circumstances offered by the new employer are substantially different and not just minor.  

DISPUTES

Disputes over a possible constructive dismissal  must be referred immediately to the CCMA/ Bargaining Council.  Should you need assistance, call Labour Protect on 0860 522687 and you will be automatically routed to the nearest labour expert on the network... 

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