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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