Legal experts at Schoeman’s Law have outlined worker rights when it comes to constructive dismissal in South Africa.<\/p>\n\n\n\n
Constructive dismissal is a situation where workers have been subjected to unbearable working conditions to the point that they feel that they have no choice but to resign or quit.<\/p>\n\n\n\n
In South African labour law, such an act is considered a form of unfair dismissal and carries repercussions for the company or employer that does it – and following proper legal processes can see the dismissed worker reimbursed.<\/p>\n\n\n\n
However, according to Schoeman Law’s Annelise Petzer, it is not a simple case of taking the employee’s word on the matter – and the burden of proof lies with them to prove their case.<\/p>\n\n\n\n
Requirements for constructive dismissal<\/strong><\/p>\n\n\n\n To establish a claim of constructive dismissal, three requirements must be met:<\/p>\n\n\n\n For a constructive dismissal claim to succeed, all three requirements must be present. If any of them is absent, it cannot be considered a constructive dismissal.<\/p>\n\n\n\n Elements of constructive dismissal<\/strong><\/p>\n\n\n\n 1. Intolerable working conditions<\/strong><\/p>\n\n\n\n To prove constructive dismissal, the employee needs to show that the working conditions created by the employer were so intolerable that a reasonable person in their position would find it impossible to continue working. <\/p>\n\n\n\n This can include harassment, bullying, discrimination, or unsafe working conditions. It is crucial to demonstrate that the employee resigned because of the employer\u2019s conduct, which made continued employment intolerable.<\/p>\n\n\n\n 2. Employer\u2019s breach of contract<\/strong><\/p>\n\n\n\n The employee must provide evidence that the employer breached a fundamental term of the employment contract. <\/p>\n\n\n\n This breach can result from various actions or omissions, such as unilaterally changing terms and conditions, failing to address grievances, implementing unfair disciplinary procedures, or unjustified demotions.<\/p>\n\n\n\n 3. Employee\u2019s resignation as a result<\/strong><\/p>\n\n\n\n The employee must establish a direct causal link between the employer\u2019s breach of contract or the intolerable working conditions and their decision to resign.<\/p>\n\n\n\n The resignation must be a reasonable response to the employer\u2019s conduct.<\/p>\n\n\n\n 4. Connection between breach and resignation<\/strong><\/p>\n\n\n\n It is essential to demonstrate a clear link between the employer\u2019s breach of contract, the intolerable working conditions, and the employee\u2019s decision to resign. <\/p>\n\n\n\n The employee should be able to prove that the employer\u2019s actions or omissions directly led to their resignation rather than any unrelated factors.<\/p>\n\n\n\n CCMA proceedings and remedies<\/strong><\/p>\n\n\n\n To pursue a constructive dismissal claim, the employee must lodge a formal complaint with the CCMA within 30 days of the alleged constructive dismissal. <\/p>\n\n\n\n The CCMA will attempt to facilitate conciliation or mediation between the parties to find a resolution. <\/p>\n\n\n\n If the dispute remains unresolved, it may proceed to arbitration, where an independent commissioner will make a binding decision.<\/p>\n\n\n\n Burden of proof<\/strong><\/p>\n\n\n\n In constructive dismissal cases, the burden of proof rests with the employee. They must present sufficient evidence, on a balance of probabilities, to establish that constructive dismissal occurred. <\/p>\n\n\n\n This evidence should support each element of constructive dismissal, including intolerable working conditions, the employer\u2019s breach of contract, resignation, and the causal connection between the breach and resignation. <\/p>\n\n\n\n Corroborating evidence, where possible, can strengthen the claim.<\/p>\n\n\n\n If the CCMA finds in favour of the employee, they may be entitled to various remedies, such as compensation or reinstatement to their former position.<\/p>\n\n\n\n\n
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