What you need to know about Constructive Dismissal

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Constructive Dismissal is known as “forced resignation”, a constructive dismissal in terms of section 186(e) means that the employer made continued employment intolerable for the employee, leaving the employee with no alternative but to resign. Since the resignation was not truly voluntary, it is, in effect, a termination.

What are the grounds of constructive Dismissal?

Situations that could lead to an employee feeling that they have been constructively dismissed could include:

  • Being suddenly demoted for no reason.
  • Being bullied or discriminated against by either the employer or colleagues.
  • Changing hours or place of work without agreement and without the contractual right to do so.
  • Sometimes, there is a continuing pattern of behaviour or incidents which, taken as a whole, amounts to a breach even though they may not be in isolation.

In constructive dismissal cases, a bullied employee argues that he or she was forced to quit because of the employer’s intolerable behaviour. Constructive dismissal can be incredibly difficult to prove. You should be very careful about resigning if you want to be able to claim unfair dismissal afterwards.

What to do before resigning

As an employee, there are steps you need to take before resigning. You need to exhaust all internal structures which may or may not be there to resolve your aggrieved issues. Most companies have Grievance Procedures which often occur in 3 stages.

The purpose of Grievance Procedures

• When an employee wishes to lodge a complaint against the performance or conduct of a member of management, he/she may lodge a grievance against such manager in accordance with the grievance procedure. If the grievance is serious and  substantial, and not frivolous or vexatious in nature, disciplinary action may be initiated by the company against the manager.
• The purpose of this procedure is to provide a process where the grievance(s) of individual employees or a small group of employees, arising out of their employment, can be resolved.
• A grievance enquiry is not a hearing. The purpose is to try and resolve the problem.
• It is important to have the enquiry and to treat the matter seriously. The manager may be abusing his/her power and the company is responsible for protecting the employee in such a case.
• No shop steward should be victimised as a result of his having advised or represented any employee lodging a grievance. Where victimisation is suspected, an employee may submit details in terms of the Grievance Procedure.
• The grievance must be handled with discretion and protect the confidentiality and privacy of the employees concerned.

Stages of the Grievance Procedure

Stage One

  • An employee who believes he has a grievance must first report such a grievance to the Manager (or his designate).
  • The Manager (or his designate) must endeavour to resolve the grievance and communicate the outcome to the employee as soon as possible. Once a decision has been given by the Manager (or his designate) and the employee feels that the matter must be pursued further, then Stage 2 becomes effective.
  • In the event of an employee having a complaint about his immediate supervisor, he or she must approach the next reporting level of his immediate supervisor directly for the purpose of resolving the grievance.

Stage Two

  • If the employee elects to proceed with the grievance, he shall, with the assistance of his representative, if he so wishes, lodge the grievance with the Manager (or his designate). A Chairperson of the same or higher status as the Chairperson of the original grievance hearing will then be appointed and a further grievance hearing convened.
  • Once the Chairperson has given a decision and the employee feels that the matter must be pursued further, then the provisions of the Dispute Procedure contained in the Recognition and Procedural Agreement shall be evoked (should such an agreement be in place in the workplace).

Stage Three

  • In cases where there is no Recognition and Procedural Agreement in place, and if the chairperson of stage 2 is not an MD/CEO, then stage 3 has to be referred to him/her to resolve the dispute. The employee elects to be represented by a fellow employee or shop steward. If the matter remain unresolved, the employee can resign with a detailed letter outlining the facts that support his/her claim that the employer has made his/her continued work intolerable thus he/she had no option but to resign with immediate effect. The employee should at all times include the grievance forms, minutes of all the three stages of the grievance process and the outcomes, as this will be the evidence which will be placed before CCMA or any other Dispute Resolution Centre.
  • Note: For any clarity before resigning due to intolerable working conditions and after exhausting all internal avenues, consult www.ccma.org.zafor guidance.

By Nonoshe Ramphele

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Sihle Bolani

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