Constructive dismissal occurs when an Employee resigns from their Employer and claims that the resignation has occurred as a result of the Employer's intolerable and unbearable conduct, workplace, or working conditions.
Constructive dismissal occurs when an Employee resigns from their Employer and claims that the resignation has occurred as a result of the Employer's intolerable and unbearable conduct, workplace, or working conditions. The word ‘constructive’ refers to something that was created or induced and in this context a constructive dismissal means that the Employee’s resignation was coerced by the Employer by some or other reason and was not a voluntary decision on the part of the Employee.
Section 186 (1) (e) of the Labour Relations Act defines a constructive dismissal as a dismissal in terms of which “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee".
If your Employer has made continued employment intolerable or unbearable you may have a case of constructive dismissal, however to succeed with such a case an Employee will have to prove that:
In the case of Mvamelo vs AMG Engineering an Employee was informed that he was to face a disciplinary hearing for theft and criminal charges would also be laid against him. The resigned and claimed constructive dismissal, however lost the case because it was found by the Arbitrator that he had resigned to avoid the disciplinary action. However, in the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd an Employee was found to have been performing his work poorly and as a result the Employer stopped paying him a salary and replaced it with a commission structure. The Employee resigned and succeeded with his constructive dismissal claim wherein it was found that the Employee could not be expected to continue employment under such intolerable circumstances.
It is with the above in mind that Employee’s must be careful and ensure that they raise any issues with their Employer and allow their Employer to remedy the situation before resigning and claiming constructive dismissal. It is also important for Employer’s to remember not to discipline or treat their Employees unfairly, and deal with grievances or allegations of unfair labour practice as soon as they arise.
