What is constructive dismissal

Constructive dismissal referrals could land you in hot water at the CCMA if you don’t have sufficient evidence to prove that you addressed internal problems fairly.

Constructive dismissal is a term that can make employers nervous. Also referred to as forced resignation, it is action taken by an employee when their work conditions become unbearable, and they see no other option other than to resign. Employees claiming constructive dismissal refer their case to the Commission for Conciliation, Mediation and Arbitration (CCMA), where they seek an award of compensation from their former employer. All claims are carefully investigated, as the CCMA acts fairly to protect the rights of both employees and employers. As long as the employer has been reasonable and responsible, they should have nothing to worry about.

In a case of constructive dismissal, it is up to the employee to prove that conditions at the place of employment were intolerable due to the actions (or lack thereof) of the employer. The employee has to provide supporting evidence at the CCMA. An inability to do so results in the case being dismissed.

To protect themselves, it is recommended that employers keep evidence of their own. For example, it is advisable to ensure that complaints, records of remedial action taken, minutes of meetings where issues raised by employees were discussed, letters of resignation, and so on are kept.

It is unfortunate that some employees try to take advantage of constructive dismissal by gaming the system. There are cases where dissatisfied workers resign and then make a claim for constructive dismissal, even though the resignation was in no way forced. As a result, it is important for employers to be aware of the legitimate grounds for constructive dismissal.

Examples of this include failure to pay an employee’s salary (where the employer can be shown to be at fault), making unlawful deductions, assaulting employees or otherwise abusing them that is including verbally. Forcing employees to accept transfers from other departments or branches, unreasonable demoting employees and offering an inferior position with the threat of dismissal if they do not accept it. Threats of dismissing employees if they do not comply with demands that can be shown to be unreasonable, sexual harassment of employees. Further examples include offering employees retrenchment packages as an alternative to a dismissal, or accusing an employee of misconduct but denying them the opportunity to challenge the accusations in a formal disciplinary enquiry. Employers can take steps to protect themselves from allegations of the above conduct by keeping records of all wages, salaries and deductions, as well as records of employee misconduct and disciplinary hearings, and documenting all transfers and requests in writing.

For an employee to succeed in a claim of constructive dismissal, they also need to be able to show that they exhausted all possible internal procedures to try and resolve the issues they faced, for example by approaching senior management and formally lodging a grievance. Any such action needs to be recorded by the employer, and they should be able to show that they responded to it in a reasonable and fair manner.

At the East Rand Chamber of Commerce and Industry, we provide assistance which will ensure that your internal processes are accurately implemented to protect you from the employer against these allegations. We chair internal grievance inquiries and offer CCMA representation should an employee refer a case for constructive dismissal.

For more information, please contact us at (010) 040 8333 or e-mail marketing@chamlabour.co.za or visit our website, www.chamlabour.co.za, for any queries.