WHAT IS CONSTRUCTIVE DISMISSAL
Constructive dismissal is where an employee resigns
with or without a notice or leaves employment due to
unfair pressure, unreasonable instruction or
unbearable conduct on the part of the employer.
Constructive dismissal is treated the same as other
kinds of dismissals, and the employee is entitled to
relief in terms of the LRA.
WHEN DOES CONSTRUCTIVE DISMISSAL
The LRA states that constructive dismissals are
usually the forced resignation of employees because
employers made continued employment intolerable.
‘Intolerable’ means unsupportable or insufferable,
which has the effect that the employer’s conduct has
severed the employment relationship, which makes
continued employment impossible or intolerable.
If there is unfair pressure, or circumstances are
unbearable at the workplace, the employee must
lodge a grievance by —
writing a letter;
having a meeting with superiors (verbally).
The mere fact that the employee feels that he/she
has been issued with an unreasonable instruction, or
subjected to undue pressure, does not justify
resignation and subsequent claim of constructive
In the case of constructive dismissal, the employee
must resign because of the employer’s conduct. If the
employee would have resigned in any event, it may
become problematic to prove constructive dismissal.
The leading case, Jooste v Transnet (1995) 16ILJ629
(LC), states that the employee must prove that the
employer’s conduct led him to terminate the
relationship. This requires an examination of the
employee’s state of mind (a subjective test). Once
the employee has discharged the burden of proof, the
burden shifts to the employer to show that the
employee’s response was unwarranted (an objective
test). In order words, would such conduct of the
employer be of such a nature to have reasonably
produced a decision by an employee to quit?
an employee who decides to resign...
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