30/03/2022
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1. What Is Constructive Dismissal?
In layman's terms, Constructive dismissal can be defined as a situation or an environment in the workplace, which has been created by an employer in which it becomes intolerable for an employee to continue employment and where the employee is left with no choice but to resign.
2. What qualifies for constructive dismissal?
Constructive Dismissal is where an employer has committed a serious breach of contract, entitling the employee to resign in response to the employer's conduct. The employee is entitled to treat him or herself as having been “dismissed”, and the employer's conduct is often referred to as a “repudiatory breach”
3. Elements required to prove constructive dismissal claim.
3.1 That the contract of employment was terminated by the Employee because of the Employer's conduct and not for any other reason;
3.2 That the reason for the termination of the contract was that continued employment became intolerable for the Employee; and
3.3 that it must have been the Employer of that Employee who made the continued employment intolerable
4. Internal Grievance Procedures
Employees tend to struggle to prove Constructive Dismissal claims at the CCMA in circumstances where they did not exhaust all internal avenues in respect of grievance procedures and policies set in place by the Employer for Employee complaints or lodging of grievances by Employees. The CCMA has similarly advised that an Employee needs to show they had attempted to resolve the intolerable situation prior to resigning. Of course, this is not always possible in small businesses or workplace environments where there is no Human Resources Department. Furthermore, it must be noted that the intolerable situation may be one event, such as sexual harassment or assault, or a number of events that have taken place over a period of time, such as public humiliation.
5. Referring Constructive Dismissal Disputes to the CCMA
Employees are often not aware of the timeframe provided by law within which to lodge a Constructive Dismissal claim with the CCMA and that most importantly if the timeframe is missed, the Employee will have to apply for condonation for the late referral, the result of which may mean that the Employee’s claim might be rejected. To avoid a situation where an Employee’s claim is rejected due to being out of time, the Employee must refer the Constructive Dismissal dispute to the CCMA within 30 (thirty) days of the date of resignation of the Employee.
6. Outcome
Should an Employee be successful at the CCMA in proving a Constructive Dismissal occurred, the Commissioner who arbitrated the dispute may award the Employee up to 12 (twelve) months compensation.
Wishing everyone a fruitful and productive day!