FIRED!!! No I Resigned…

25 July 2018

ATTENTION WE ARE MOVING! From the 30^th of July 2018, our new address will be: Ground Floor, Wrigley Field Building The Campus, 57 Sloane street Bryanston, 2021   FIRED!!! No I Resigned… Employers and employees are often confused about what constitutes constructive dismissal. The very basic definition of a constructive dismissal may be defined as “a situation in the workplace, which has been created by the employer and which renders the continuation of the employment relationship intolerable; to such an extent that the employee has no other option than to resign. Employees in particular have a wrong understanding thereof and have been unsuccessful when referring a constructive dismissal matter to the CCMA or relevant Bargaining Council, when failing to prove the introduction of any intolerable working condition. Referrals based on the refusal of salary increases, refusals of bonuses or being overlooked for promotions are bound not to succeed. The onus lies on the employee’s shoulders to prove a constructive dismissal, which is particularly difficult. In order for an employee to have reasonable prospects of winning a constructive dismissal case, he/she has to convince an Arbitrator of the following:

• That the circumstances of the employee are so intolerable that he/she cannot remain employed with the company;
• The unbearable situation was caused by the employer;
• The unbearable circumstances caused the employee to resign;
• There was no alternative option at the time and the employee was forced to escape the circumstances;
• The employer was in control of the unbearable circumstances; and
• The employee exhausted the internal procedures in an effort to resolve the issues that caused the alleged constructive dismissal.

Employers are warned that a dismissal based on the employer having followed an unfair disciplinary procedure, which resulted in the employee resigning COULD BE A VIEWED AS A CONSTRUCTIVE DISMISSAL. However, an employee resigning in order to avoid a disciplinary hearing would NOT NECESSARY CONSTITUTE A CONSTRUCTIVE DISMISSAL. If the employee was threatened to “resign OR face a disciplinary hearing and be dismissed” it would most likely justify a dispute of a constructive dismissal. Employers and employees should keep in mind that various internal avenues should be explored first in attempt to resolve internal disputes. Employees should be given the opportunity to freely raise their concerns to management and be advised to follow internal procedures such as the grievance procedure to resolve disputes. Please feel free to contact our offices on 0861 737 263 should you require any assistance whether it be about your grievance procedure, or for us to conduct your disciplinary inquiry.