Constructive dismissal can occur in many forms. Unfortunately, there are no cut and dried rules on what adds up and does not add up to constructive dismissal. Hence it remains a thorny issue to tackle.
The increased rate of resignations with or without notice is quite alarming. It is logical to assume that most of the resignees have ulterior motives when they resign. Therefore, employers should be alarmed. The CCMA has been receiving a load of constructive dismissal cases in recent years.
This article aims to establish the guidelines for constructive dismissal and how to prevent constructive dismissal cases in the workplace.
What is Constructive Dismissal?
In terms of Section 186(1)(e) of the Labour Relations Act, constructive dismissal occurs when ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’
What are the elements of constructive dismissal?
- Resignation, resignation can be verbally or reduced in writing. However, it should be clear, not ambiguous;
- Nexus/link between the employer’s intolerable conduct and employee’s resignation;
- Documentary evidence, e.g. e-mails or letters sent to the employer about their intolerable conduct or grievance lodged against the employer about their intolerable conduct, which was unresolved and not considered timeously or within a reasonable time. Reasonable time is defined by the complexity of each case;
- It must be established that the employee had no other motives for resignation. This means that they would have continued working indefinitely had it not been for the employer’s intolerable conduct;
- Proof of service of the above documents or communications;
- The employee has to prove that there was no alternative avenue at that time, but to resign.
Common conducts that can constitute constructive dismissal if the employee later resigns.
It is important to take note that each case should be considered on its own merits.
- Demotion (indirect demotion/replacement) e.g. an employer delegates the duties of X (employee) while he is in the workplace to Z (colleague), which results in a material reduction of X’s remuneration or in X’s authority;
- Continued abuse, assault, harassment, intimidation even after the employee has complained or lodged a grievance;
- Deductions from employee’s salary without consent;
- Geographic mobility, if the employer unilateral make changes to the employee’s place of work against the employee’s will;
- Any form of unfair labour practice, if it remains unresolved or not considered or continued even after the employee has complained or lodged a grievance.
Can a person who was constructively dismissed claim UIF?
It is trite law that a person who resigns waive their right to claim UIF. However, if it is proven that the employee was constructively dismissed at the CCMA or the bargaining council, then the employee will be entitled to claim his/her UIF.
How to avoid constructive dismissal claims in the workplace?
- It is crystal clear that employers cannot prevent employees from resigning. However, they can protect themselves from any claims arising from resignation;
- Employers should deal with grievances timeously;
- Ensure that all communicated complaints are addressed and reduced in writing and signed by all parties;
- A grievance procedure is established in the workplace;
- Any change that will affect the employees is communicated, and the consensus is reached;
- Demotions are done mutually and in a fair procedure.
In conclusion, employers have a huge role to play in determining the work environment. They should appreciate their employees and encourage communication. By doing so, employers can limit the number of resignations in the workplace.
Contact your SEESA Labour Advisor to assist your business with any Constructive Dismissal related queries you might have alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About The Author:
Sabelo Sibiya is currently working as a Consumer Protection & POPI and Labour Legal Advisor at the SEESA Newcastle branch. . He obtained his LLB degree at the University of Zululand, and will soon be admitted as an Attorney of the High Court.