CONSTRUCTIVE

WHAT IS CONSTRUCTIVE DISMISSAL  an employee who decides to resign rather than The mere fact that the employee feels that he/she accepting an unlawful deduction from his/her Constructive dismissal is where an employee resigns has been issued with an unreasonable instruction, or ; with or without a notice or leaves due to subjected to undue pressure, does not justify  an unlawful instruction by superiors that leads to unfair pressure, unreasonable instruction or and subsequent claim of constructive forced resignation by that employee; unbearable conduct on the part of the employer. dismissal.  at the workplace. Constructive dismissal is treated the same as other kinds of dismissals, and the employee is entitled to In the case of constructive dismissal, the employee REFERRING CONSTRUCTIVE DISMISSAL relief in terms of the LRA. must resign because of the employer’s conduct. If the DISPUTES TO THE CCMA employee would have resigned in any event, it may become problematic to prove constructive dismissal. The employee must complete the LRA 7.11 referral WHEN DOES CONSTRUCTIVE DISMISSAL forms. HAPPEN The leading case, Jooste v Transnet (1995) 16ILJ629 The employee could request reinstatement. The (LC), states that the employee must prove that the employee may be compensated up to 12 months. employer’s conduct led him to terminate the The LRA states that constructive dismissals are relationship. This requires an examination of the The duty of proving dismissal rests with the usually the forced resignation of employees because employee’s state of mind (a subjective test). Once employers made continued employment intolerable. employee and that of justifying it rests with the the employee has discharged the burden of proof, the employer. burden shifts to the employer to show that the ‘Intolerable’ means unsupportable or insufferable, employee’s response was unwarranted (an objective RELEVANT LEGISLATION which has the effect that the employer’s conduct has test). In order words, would such conduct of the severed the employment relationship, which makes employer be of such a nature to have reasonably continued employment impossible or intolerable. produced a decision by an employee to quit? Labour Relations Act, s186, s192

If there is unfair pressure, or circumstances are The following are examples that might constitute unbearable at the workplace, the employee must constructive dismissals — lodge a grievance by —  offers of inferior employment coupled with threats  writing a letter; to dismiss an employee if he/she does not oblige;  having a meeting with superiors (verbally).

CCMA Info Sheet: CONSTRUCTIVE DISMISSAL - JAN 2002

FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR YOUR NEAREST CCMA OFFICE