Unknowingly dismissed unfairly: constructive dismissal
Taking place at the instance of an employer and entailing some sort of communication between employer and employee, dismissal is easily recognized. It intends to terminate the employment contract.
MBOMBELA – The common law recognizes only two forms of dismissal: those with notice and those without notice. The Labour Relations Act 66 of 1995 (LRA) includes various forms of dismissal, which has the effect to terminate the employment relationship.
The focus of this article will be on Section 186(1)(e) of the LRA, in which dismissal takes place when the employer makes continued employment at the workplace intolerable, known as constructive dismissal.
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It is the termination of an employment contract with or without notice when the employee repudiated their contract, because they are left with no other option due to the employer’s conduct. The employee need not formally resign and it can be proved even in circumstances where the employee’s conduct would amount to abscondment.
For the employee to claim constructive dismissal, it has to be objectively proven that the employer behaved in an intentional oppressive manner. The employee needs to show that he/she was subjected to undue duress.
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The employees first need to communicate to management the source of their unhappiness and exhaust all grievance procedures in place at the institution, before resigning.
If there is no paper trail showing that the employees expressed their dissatisfaction at the employer’s conduct, the employee will have a hard time convincing the Commission for Conciliation, Mediation and Arbitration (CCMA), that there was no other option but to resign. Keep all e-mail correspondence between management and yourself.
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If your employers are not providing you with the necessary tools of the trade to make it possible for you to work and perform in terms of the employment contract, constructive dismissal will have taken place. A court will consider the circumstances, as once constructive dismissal is proved, the onus transfers to the employer to prove that the dismissal was justified, based on the employee’s conduct, capacity or on operational requirements.
It was found that an employer who denied his employee the use of a company car to get to work, where he did not have his own transport, constituted constructive dismissal. If the fairness of a dismissal is challenged, it needs to be in writing and submitted within 30 days from date of dismissal to the CCMA.
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The compensation awarded to an employee whose dismissal was found to be unfair must be just and equitable, but may not be more than the equivalent of 12 months’ remuneration.
For further information, you can submit your enquiries to the CCMA Nelspruit regional office, at 25 Samora Machel Drive, Sanlam Centre Building, Seventh Floor, Nelspruit, with contact number: 013-752-2155.
