Did you resign at work with or without notice, not because you wanted to but because of your employer’s continuous intolerable conduct?
If so, then this renders such as Constructive Dismissal. Constructive Dismissal is defined in terms of section 186 (1) (e) of the Labour Relations Act as the employee resigns and claims that the resignation occurred not because the employee wanted to leave but as a result of the employer’s intolerable conduct. The employer’s behaviour around or towards his employees is very important and also plays an important role. In most cases, the employer would make your life difficult and you feel that you can no longer remain in your job. If this occurs, the law regulating employment treats such resignation as an actual dismissal by your employer, and in turn, you can sue your employer for unfair dismissal.
There are several examples of Constructive Dismissal such as employee resigned because she was sexually harassed by her employer; the employer failed to pay the employee for several occasions; employer kept on accusing you of theft; telling you that you are incapable of doing your job; changes of your job description without consulting you etc.
What employee must show or prove?
The employee must show that the conduct of the employer was intolerable and that he can no longer continue to work; that such conduct was the reason why he resigned; there was no other option left but to resign in order to escape the circumstances; that such intolerable circumstances or circumstance was or have been caused by the employer and lastly that the employer must have been in control of the unbearable circumstances.
What can you do when you fall within the scope of Constructive Dismissal?
If you find yourself familiar with this, or encounter such in future, consult with the relevant trade union, labour experts and/or a lawyer. Your matter/claim must be referred to CCMA as a matter of urgency.
What are the results and your remedies?
There are various remedies available to the employee. If it is found that it was not your intention to resign, but you were forced by the employer’s intolerable conduct or the employer created unbearable circumstances for you, the employer may be found at foul for such. Consequently, you may seek the employer to reinstate you or compensate you. Your remedies will be enforced by the order of the court.
It is difficult to prove or establish Constructive Dismissal. This thus implies if such employee cannot show the important conditions that render continued employment intolerable, then that the resignation remains valid, hence, it is strongly advisable to approach legal experts for such matters.
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TSHENOLO MOTSEBE is a candidate attorney at Adrie Wahl Attorneys.