Employees often find themselves in employment conditions that are difficult to deal with. However, how does one mark the difference between difficult employment conditions and employment conditions that are so intolerable that the employee is forced to resign?
What Is Constructive Dismissal?
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. The precise legal definition can be found in Section: 186 (1) (e) of the Labour Relations Act 66 of 1995, as amended.
It is important to note that the employee must have resigned for the employer's actions to be considered as constructive dismissal. It is further important to note that constructive dismissal is different from unfair dismissal. The distinction between the two forms of dismissal lies in who bears the onus to prove that a constructive or unfair dismissal has occurred.
Concerning unfair dismissal, the onus is on the employer to prove that the dismissal was fair in terms of the Labour Relations Act and other relevant statutes. In contrast, with constructive dismissal, the onus is on the employee to prove that Constructive Dismissal has taken place.
How Would I Know That I Am A Victim Of Constructive Dismissal?
There are set characteristics that enable an employee to identify whether a constructive dismissal has taken place. These characteristics are directly linked to the definition of constructive dismissal and serve as the factors that an employee must prove to succeed with a claim of constructive dismissal. The characteristics are set out as follows:
- The employment circumstances must be so intolerable that the employee truly could not continue his/her employment;
- The intolerable or unbearable circumstances must have been created by the employer;
- The unbearable circumstances must be the cause of the employee's resignation, and the employee must have resigned as a result of same;
- The employer must have been in control of the unbearable circumstances;
- There must have been no other alternative but for the employee to resign.
If these characteristics can be identified and are present, then a constructive dismissal has occurred.
What Are The Legal Remedies?
If an employee feels that he/she has been subjected to constructive dismissal, they may approach the Commission for Conciliation, Mediation and Arbitration (CCMA) and lay a complaint. To lodge a dispute, they would have to complete the CCMA referral form, which can be found at the CCMA offices, the CCMA website, and the Department of Labour offices. The complaint will then follow the process set by the CCMA, and the employee and previous employer will be informed when hearings and any further steps in proceedings will occur. Usually, the first meeting would be a conciliation.
If successful in proving that constructive dismissal has taken place, the successful claimant will be in a position to be compensated. There is also a possibility of reinstatement, but usually, the employer-employee relationship has deteriorated to such a degree that this is rarely awarded or pursued. However, reinstatement may be possible where the intolerable circumstances which resulted in the constructive dismissal are no longer present.
How Long After Being Dismissed Does An Employee Have To Raise The Allegation Of Constructive Dismissal?
A party claiming constructive dismissal will have 30 days after they have resigned to lodge a complaint with the CCMA. Should a complainant want to lodge a complaint with the CCMA after the expiration of the 30-day period, they would have to make an application for condonation setting out the reasons for the delay.
Although legal representation is not a requirement with CCMA proceedings, constructive dismissal is generally very difficult to prove and may require technical clarifications. Therefore, it is important to consult with a legal expert to ensure that your claim and dispute is put forward correctly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.