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When your boss makes life at work intolerable

Article by listed attorney: Fawzia Khan

Conventional wisdom tells us that when an employee tenders his/her

resignation to their employer, which resignation is then accepted, this

terminates the employment contract between the parties, and the employee

will normally not have any claims against the employer.


However if the conduct of the employer is such that it causes the employee

to find the workplace environment so intolerable, which leaves the employee

with little or no option but to resign, this is termed “constructive dismissal” and

the employee could then have a claim against the employer.


Section 186 (1) (e) of the Labour Relations Act says that in circumstances

where "an employee terminated a contract of employment with or without

notice because the employer made continued employment intolerable for the

employee", this would constitute a dismissal. The resignation was therefore

not a voluntary one and because of the employer’s conduct, the employee

was forced or coerced leave his/her employment. Off course if an employee

resigns so as to avoid any disciplinary hearing or because of any misconduct

on his path, that will not be considered as a constructive dismissal.


Constructive dismissal ultimately means that the employee was unfairly

dismissed. To prove this, the employee must prove two vital facts. Firstly

that the resignation was not voluntary. Secondly that the resignation was

due to the conduct of the employer who made it intolerable for the employee

to continue working. However constructive dismissal claims are notoriously

difficult to prove. In normal dismissals claims, the onus lies with the employer

to prove that the dismissal was procedurally and substantively fair. However

in a constructive dismissal claim, the burden of proof shifts from the

employer to the employee. Now the employee must prove the constructive

dismissal, on a balance of probabilities. The employee must prove the

intolerable work conditions. The employer does not need to show that he

did not introduce any intolerable condition. If the employee cannot prove the

introduction of intolerable condition at work, he/she will not succeed with the

claim of constructive dismissal. Once the employee at the CCMA proves

a constructive dismissal, the onus shifts to the employer to prove that the

dismissal was fair.


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