Constructive Dismissal 

What is constructive dismissal in South Africa? 

Constructive Dismissal is defined by the Labour Relations Act in Section 186 (1) (e) as ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’ Simply stated – constructive dismissal can be when an employer makes life so awful for an employee that they are forced to resign. 

It is fairly hard to prove constructive dismissal, and there are many people who try and claim that they were constructively dismissed after they have resigned from their jobs, and then realize that they cannot claim UIF. In a true case of constructive dismissal, even though the employee did resign, it is seen as an unfair (constructive) dismissal, and so one can claim UIF, as well as usually some form of compensation for the unfair dismissal. 

What constitutes unfair dismissal? 

In order to successfully lay a claim of constructive dismissal, there are a few things that the employee will need to prove. (Note that in the case of a constructive dismissal, it is the employee who has the burden of proof. If and when they have successfully proved constructive dismissal, it is then for the employer to try and prove that they did nothing wrong.) 

There are a number of factors that need to be proved in order to successfully win a case of constructive dismissal: 

• The circumstances of employment became so unbearable that there was no way that the employee could continue to work at the place of employment. 

• These unbearable circumstances were the cause of the employee’s resignation. 

• There was no reasonable alternative for the employee but to resign. 

• The unbearable situation must have been caused by the employer. 

• The employer must have been in control of the unbearable circumstances. 

If any of the above cannot be proven, then it is unlikely that a case will be successful. 

In order to win a case of constructive dismissal, first of all the employee must have resigned. If the employee was fired, then it cannot be constructive dismissal (although there may still be grounds for unfair dismissal.) It would be easier to prove constructive dismissal if there was a written letter of resignation which included the reasons why the employee felt they were forced to resign. 

The employee should also have tried to follow some form of formal grievance procedure and been unsuccessful. There needs to be proof that there were no alternatives for the employee but to resign. If they have not followed a formal grievance procedure, then it cannot be seen that there was no reasonable alternative. 

They will also need to prove that the unbearable circumstances were the cause of the resignation. It needs to be proven that there was no other motive for resigning, and that the employee would have continued to work indefinitely if it was not for the unpleasant circumstances caused by the employer. 

It is also important that the unbearable circumstances were definitely caused by the employer. It may be the case that it is in fact a lower-level supervisor or manager who made the employees life intolerable, and not the employer themselves. If the employee has not made any attempt to get their employer to deal with the problem, then it cannot be seen as constructive dismissal, as the employee has not made all attempts to resolve the matter. 

Is constructive dismissal legal? 

No. It is not legal to force somebody to resign or make their lives so awful that they feel like the only option they have is to resign. It can land you with a fairly large settlement payment if the CCMA or court finds that constructive dismissal has occurred. 

Successful cases of Constructive Dismissal 

There are no cut and dried rules on what does or does not constitute Constructive Dismissal. However here are some examples of cases that have been successful at the CCMA: 

• The employer was aggressive with the employee, threatened, insulted and intimidated the employer and put prolonged pressure on the employee to resign. 

• The employer made wage deductions without any reason, insulted the employee and criticised their political affiliation. 

• The employer sexually harassed an employee and did not stop after it had been reported. 

• The employer did not pay the employee as per their contract 

• The employee was forced to apply for their own position and was unsuccessful in their application. 

• Unreasonable targets were set for the employee and they were disciplined for not meeting those targets. The employee was also excluded from training opportunities with the organisation. 

• Abuse, assault and emotional cruelty. 

• The employer forcing the employee to make a geographic transfer against their will. 

• Failure by the employers to adhere to the contract. 

• Spurious allegations of misconduct by the employer. 

• Forced resignation in the face of unacceptable alternatives. 

• Unilateral amendments to terms and conditions of the employee’s service 

• Unfair disciplinary action. 

Unsuccessful cases of Constructive Dismissal 

The following are cases where the CCMA ruled against Constructive Dismissal: 

• An employer offered voluntary retrenchment packages to some employees, but the package was not approved for one of the employees. 

• An employee was unhappy with a superior’s management style and did not see any favorable work prospects in their future. 

• An employee was reprimanded by the employer about their poor work performance. 

• Distress or disappointment at the actions of the employer. 

• An employee being unhappy with the way a supervisor has been treating them and resigning before escalating the matter to the employer for them to solve. 

Can redundancy be constructive dismissal? 

No. One of the requirements for constructive dismissal is that the employee must have resigned. Being made redundant is not a resignation. Resigning in the face of retrenchment would also not be considered constructive dismissal, as it needs to be seen that the employee would have been able to continue working indefinitely if it was not for the intolerable behaviour of the employer. 

Constructive Dismissal – How much can I claim? 

This is entirely up to the judge or arbitrator. Section 194 of the LRA provides for a maximum penalty of 12 months’ salary, but this does not mean that an employee who wins a case of constructive dismissal will always receive the maximum amount. 

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