WHAT IS A CONSTRUCTIVE DISMISSAL?

By Teboho Sekhosana

 WHAT IS A CONSTRUCTIVE DISMISSAL?


One of the major challenges confronting the South African workplace is the toxic working environment which makes work intolerable for those who are at the receiving end of the terrible treatment. In majority if not all the cases it is the workers who are at the receiving end of this treatment from their superiors . This comes in a form of bullying by the superiors who at times would take out their frustrations on their subordinates . Such kind of a toxic environment has led to a sizeable number of workers being diagnosed with mental health related challenges, which has forced them into taking medication just so as to maintain their sanity. It is quite unfortunate that not much is being said about this kind of abuse that workers suffer in their different workplaces. Some have opted to leave their jobs for the sake of their mental health. We have to ask ourselves a pertinent question that how many establishments (Workplaces) in South Africa have got policies in place, I mean clear policies in dealing with such matters to ensure that they create a conducive working environment ?.

As indicated in the previous paragraph that this has led to some of the workers resigning from work for the sake of their mental health. One would then ask, What is the recourse for those workers who have had to leave their jobs against their will since they could tolerate the toxic environment any longer?. There are those who have resigned and then took their matters to the CCMA under the claim of "CONSTRUCTIVE DISMISSAL". This brings us to the crux of this piece, WHAT IS A CONSTRUCTIVE DISMISSAL?.
Constructive dismissal is when an employee terminates the contract of employment with or without notice because the employer made continued employment intolerable for the employee.
Constructive dismissal is simply a form of dismissal and requires the employee to prove that there was a constructive dismissal, before the employer must prove that the dismissal was fair.
If the dismissal is found to be unfair the employee is entitled to the remedies set out in the Labour Relations Act 55 of 1995 for unfair dismissals.

ELEMENTS OF A CONSTRUCTIVE DISMISSAL
In order to prove that there was a constructive dismissal and employee will have to prove on a balance of probabilities that :
1. The contract of employment was terminated  by the employee because of the employer's conduct and not, for instance, because the employee was planning to resign in any event;
2.The reason for the termination of the contract must be that continued employment has become intolerable for the employee. Examples of intolerability could include sexual harassment, assault or no-payment of remuneration by the employer; and
3. It must have been the employer of that employee who made the continued employment intolerable.
Employees will struggle to prove constructive dismissal IF THEY LEAVE PRIOR TO GOING THROUGH A GRIEVANCE PROCEDURE. EMPLOYEES MUST UTILISE GRIEVANCE PROCEDURES OR COMPLAI TO HIGHER LEVELS OF MANAGEMENT , provided that it is a reasonable option in the circumstances . For example,it may not be reasonable for an employee is a small business to lodge a grievance against an alleged sexual harasser if that person is her or his employer.
The test for constructive dismissal is an objective one.The Court have held that a key test is whether it is reasonable to conclude that the employer made continued employment intolerable for the employee . The intolerable situation may be one event or a number of events that have taken place over a period of time.

REFERRING CONSTRUCTIVE DISMISSAL DISPUTES TO THE CCMA
The employee may refer a dismissal dispute by completing the LRA 7.11 referral form within thirty(30) days of the termination of the employment relationship.
The employee could request reinstatement or compensation. Compensation up to 12 months remuneration may be awarded.

THE DUTY OF PROVING DISMISSAL RESTS WITH THE EMPLOYEE AND THAT OF JUSTIFYING IT RESTS WITH THE EMPLOYER.

I hope this piece will go a long way in clarifying the confusion surrounding a Constructive Dismissal.

By
Teboho Sekhosana
Political and Social Activist
0844361494 / 0630394468
sekhosanateboho9@gmail.com
My name is Teboho Sekhosana I'm an ex Numsa Shopsteward trained in Grievance and Case Handling. Political activists who has had a privilege to spend time in South America(Venezuela)

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