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What is constructive dismissal?

What is constructive dismissal?

The Labour Relations Act No 66 of 1995 defines what constructive dismissal is in section 186 (1). It states here that constructive dismissal is when an employee terminates a contract of employment with or without notice because the employer made continued employment intolerable for the employee.” So what is constructive dismissal? Quite simply it is when an employer makes life at work so dreadful for an employee, that the employee feels they have no option but to resign.

Yes even if you have resigned from work you could still claim unfair dismissal under the right circumstances. Now I need to slow down here for a second and make a few things clear. If you intend to claim for constructive dismissal you must know that the onus is going to be on you to prove that your employer has been making work intolerable for you. Most cases of constructive dismissal are lost, this is due to the fact that they arise because people resign from work only to find out they can not claim UIF if they have resigned. They then try to claim constructive dismissal, almost always unsuccessfully.

How do you prove constructive dismissal?

Ok, so now that we have answered the question, “What is constructive dismissal,” let’s take a quick look at what you would need to prove. As I mentioned earlier, the burden of proof is going to be on you to prove constructive dismissal. Therefore order for you to win a case of constructive dismissal you are going to need to show proof for all of the below;

  1. Firstly you will have to prove that circumstances in the work environment became so unbearable that there was no possible way you could continue to work in this place of employment.
  2. Secondly, you will need to prove that these circumstances were the reason for your resignation.
  3. Third, you need to prove that there was no other option available for you but to resign.
  4. Fourth you need to prove that that the unbearable circumstances were caused by your employer.
  5. And finally, you need to prove that your employer had control over the situation.

If you are not able to prove all of the above it is quite unlikely that you will not win your case of constructive dismissal.

Tips to prepare a successful case.

If you are currently in a situation where you would like to resign and claim for constructive dismissal, I would caution against taking rash actions. Firstly I recommend that you consult a labour law specialist and seek professional advice. This will help you to confirm if you are just being oversensitive or if you have a genuine case.

I also recommend that you follow the correct internal grievance procedures before simply submitting your resignation. Each company is different. A large corporation would most certainly have an internal grievance procedure that the HR manager could assist you with. A smaller company, however, might not have these procedures in place. Remember, it must be your employer that is making continued employment intolerable. If it is just your manager or supervisor it would not be considered constructive dismissal. You have to prove that you have attempted to get your employer to resolve the matter.

If you have followed the correct internal procedures with no success. And you have consulted a legal professional, who has confirmed that you have a case. It would be time to resign. Compile your resignation letter with the legal consultant and make sure to include the reasons for the resignation.

Can you claim damages?

Yes! Constructive dismissal is considered unfair dismissal and you would be entitled to claim for this. The amount you can claim would be decided via a process of mediation or arbitration at the CCMA. The LRA has provisioned for a maximum claim of 12 months salary, however, this amount is not guaranteed. Ultimately the final amount would be decided by a judge or arbitrator based on the merits of the case.

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3 comments

  1. Avatar
    Thulani says:

    Thank you very much for this super article. I never knew what constructive dismissal was or even heard about it before today.

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