Constructive Dismissal.

Many employers – in fact, increasingly so – find themselves facing a dispute of constructive dismissal at the CCMA or Bargaining Council.

 Also known as "forced resignation", a constructive dismissal means that the employer has created or varied the employee's original terms and conditions of employment in such an adverse way, that continued employment under the created or varied terms and conditions of employment has been rendered intolerable for the employee. 

The important elements (that the employee must prove) are that: 

• the intolerable working conditions were brought about by the employer

• the working conditions rendered continued employment intolerable for the employee, to the extent that

• the employee was left with no option but to resign – there was no other avenue available to the employee.

By implication, therefore, the employee must have resigned – if there has been no resignation, there can be no claim of constructive dismissal. 

The burden of proof lies with the employee – not with the employer. The employee must prove that (a) it was the employer who rendered the continuance of the employment relationship      intolerable

(b) that the employee had exhausted all internal procedures in an effort to rectify the situation    before resorting to resignation 

(c) that the conduct of the employer was unfair or unlawful or both. 

Some circumstances that may result in a constructive dismissal claim could be that the employer made unilateral changes to terms and conditions of employment ( "accept it or resign"), perhaps problems of sexual harassment that have been ignored by the employer, despite numerous complaints from the victim, non-payment of salary or wages (increasingly common these days). 

The employee must have hard evidence in support of his claim – perceived unfairness will not stand up as justifying a claim of constructive dismissal. 

The resignation of the employee is, most usually, occasioned by the employer being in breach of one or more conditions of the Employment Contract.  

However, it must be born in mind that the employer's action – including breach of contract - must have been of such magnitude that the only action available to the employee was resignation. 

Working conditions that have been rendered difficult, stressful, unpleasant, rough, and so on will not justify a resignation and claim of constructive dismissal. 

The working conditions must have been rendered intolerable and the employee must have exhausted all internal dispute resolution procedures before resorting to resignation. 

From this, it can be seen that constructive dismissal is probably the most difficult type of dismissal to prove – most claims of this nature do not succeed. 

In cases such as non-payment of salary, or ongoing sexual harassment, the chances of success are probably close to 100% because the fact of the intolerable condition and the identity of the perpetrator can be easily proved. 

But in other cases success is doubtful to say the least. 

This, however, does not mean that the employer can treat a claim of constructive dismissal with scorn or disdain – far from it. 

When faced with such a referral, the employer must treat it the same as any other CCMA or Bargaining Council referral – seriously, and with proper preparation of your defense. 

As always, consult with your labour lawyer or consultant on any matters where you are the subject of referred disputes.

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za