It’s not a very familiar term to many South Africans; however, constructive dismissal happens more frequently than we realise, and often it happens slowly and subtly. Let us take a look at what constructive dismissal is.

Constructive dismissal is the termination of an employment contract/relationship by an employee who has resigned due to the intolerable conduct of the employer. Constructive dismissal is commonly known as “forced resignation”.

What this means in effect is that an employee feels that he/she had/has no other option and is forced to resign as the employer has made his/her (the employee’s) working life unbearable, hostile & intolerable. The employee within this will claim that the resignation was directly or indirectly coerced & strategically orchestrated or manipulated by the employer.

Many people may comment & ask “isn’t this the same as unfair dismissal? Why is this labelled differently?”.

The answer is as follows.

1. Constructive dismissal is an action taken by the employee where he/she terminates the working relationship in the form of an involuntary/forced resignation.
2. Unfair dismissal is the termination of an employment contract by the employer whereby the dismissal was procedurally & substantively unfair.

Refer to our previous blog “Some insight into unfair dismissal” and “The complexities around Unfair Dismissal“.

Constructive dismissal and unfair dismissal fall into the category of unfair labour practice, and both are unlawful with respect to the Labour Relations Act.

Section 186 (1) (e) of the Labour Relations Act states that “constructive dismissal” means that an employee terminated a contract of employment due to the employer’s conduct.

The employee, therefore, has the right to refer the matter of constructive dismissal to the CCMA. If the CCMA finds truth to the claim, the employer will be instructed by the CCMA to compensate the employee. However, it is not easy to prove that constructive dismissal has taken place. In fact, only as much as 13% of employees are generally able to prove this at the CCMA. This is still, however, a concerning figure.

Let us take a look at what constitutes valid proof/evidence of constructive dismissal.

As mentioned above, constructive dismissal can be very difficult to prove. Employees will find themselves at a loss if they try to use it as a means to escape their current working environment for the wrong reasons. For example, cases where an employee resigns, because he/she did not want to face disciplinary action or comply with a lawful instruction given by his/her manager, does not constitute constructive dismissal.

A disgruntled employee must make use of the company’s grievance procedure. The grievance procedure (internal dispute resolution) allows for all company employees to communicate (with/to management) a feeling of injustice or unfairness, which is felt to exist within the workplace.

 Proving constructive dismissal at the CCMA an employee will need to show:

1. The circumstances surrounding his/her employment was (genuinely) so intolerable that he/she couldn’t stay.
2. The unbearable circumstances were the cause & reason for the reason for resignation.
3. There was no reasonable alternative at the time other than resignation.
4. The employer was in control of the intolerable circumstance/s.
5. The employer caused the intolerable/unbearable circumstance.

Now if you as an employer, team leader, HR manager or superior are wondering “how do I deal with persistent insubordination or someone who is bringing the team down?”, there is a straightforward way to handle this.

The disciplinary procedure must be followed in all cases of misconduct.

For example, (case dependent) the employee can be charged with misconduct such as (gross) insubordination, failing to comply with lawful instructions, failure to comply with his/her duties & responsibilities or adopting an attitude of insolence. It is therefore critical that all company’s implement Disciplinary codes, procedures as well as other relative policies & procedures.

Interventions & mediations can be conducted, and colleagues of the disruptive/toxic employee can lodge grievances against the individual, which will allow for management to conduct investigations which will result in a resolution.

Performance management systems & programs can be implemented to ensure that all employees are meeting the required standards and expectations of their job and conducting themselves with behaviours & attitudes which are aligned with the company culture, values, code of conduct, etc.

As an employer, if you have concerns around team management, team dynamics and oversights & are wondering how does one prevent constructive dismissal from happening in your organisation? The answer lies within measures & awareness.

It is essential that all senior members, heads of departments and/or the management teams fully understand what constitutes constructive dismissal and the consequences thereof.

The resignation, (when orchestrated) of an employee is not a “get out of jail free” card.

The orchestration of an employee’s resignation is dangerous ground, and if/when senior members of staff are involved in this type of business practice, they must be held accountable.

Training, development, education and awareness around constructive dismissal, what it is, what it is not, the consequences for all parties involved should be something that all senior members in the company who have subordinates reporting to them, undergo.

CEO’s & Directors could request that grievance reports be submitted to him/her. This will allow for him/her to flag any grievance report which indicates victimisation & targeting. Having a birds-eye view of the grievances lodged and the degree of seriousness and the parties involved will also allow him/her to spot trends.

The CEO’s & Directors could also request to view a snapshot of the performance review reports and flag and address all areas of prejudice, bias or unfairness which stand out or are implied by the employee.

If you feel that you or your staff require training related to constructive dismissal or any of the company policies and procedures covered in this article, simply reach out to Alignment Consulting for more assistance.