FORCED TO RETIRE?
Could you have a case for Constructive Dismissal?


– Melcom William Oosthuizen

For most part, all individuals are familiar with employment relationships, either as an employee or an employer. Often these relationships become soured for various reasons creating a hostile work environment.

Without delving into the great murky depths of dismissal on both a procedurally and substantively fair manner, employers are afforded the option to dismiss an employee, after following the correct procedure, should substantive grounds exist for same. However, what options are available to an employee who finds the work environment intolerable and further are these employees able to receive compensation from an employer?

We are all aware of an employee’s right to resign and thereafter their responsibility to serve their notice period. What many employees forget is that a resignation would result in the inability to claim UIF. So should your resignation be the consequence of a new job, this article is not for you.

The Labour Relations Act (“LRA”)1 introduces a special form of dismissal known as “constructive dismissal” and defines this type of dismissal as: “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.2

What? How? Now that I have your attention, it is important to remember that the courts and bargaining forums have made various rulings, often contradictory to one another, regarding constructive dismissals. Certain rules or guidelines have been developed and unlike most cases of dismissal where the employer bears the onus of proving that the dismissal was both procedurally and substantively fair, in cases of constructive dismissal the employee bears the onus.

The following needs to be proved in order for an employee to be successful:

1. The employment circumstances were so intolerable that the employee could truly not continue to stay on.

2. The unbearable circumstances were the cause of the resignation of the employee.

3. There was no reasonable alternative at the time but for the employee to resign to escape the circumstances.

4. The unbearable situation must have been caused by the employer.

5. The employer must have been in control of the unbearable circumstances.

Each of the above steps have their own comprehensive and non-exhaustive requirements, so unfortunately that moody boss that enjoys shouting at you, in itself, does not constitute a claim for constructive dismissal.

It is therefore imperative that an employee seeks professional legal advice before handing in that letter of resignation or simply not returning to work. Employers, we can assist you too, should an employee refer a matter to the Labour Court or CCMA for constructive dismissal.

Kindly contact our offices now for your consultation.

1 Act 66 of 1995 as amended

2 Section 186(1)(e) of the LRA

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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