Articles

By GetSmarter

Sometimes, employers must dismiss workers because they behave inappropriately, are disruptive, or prevent others from performing their work. However, on some occasions, it is the employer him or herself who makes the working conditions intolerable for an employee, who consequently resigns. In terms of the current labour law, this could be viewed as a constructive dismissal.

When is dismissal constructive?

To fulfil the definition of constructive dismissal, four conditions must be met:

  1. The employee must resign.
  2. The employee must have resigned because of an action or omission by the employer that made the working conditions intolerable.
  3. The employee must have resigned as a direct result of the intolerable action by the employer.
  4. The employee must not have intended to resign voluntarily, and had to do so as a last resort.

The termination of the work contract by the employee must not be wholly voluntary: the employee must feel that he had no choice but to resign. This situation may also be caused by an action or omission by the employer, with the specific intention of forcing the employee to resign.

The result of this action or omission must be ...

that the employer makes the working environment intolerable. The circumstances of the action must be judged in each individual case, as there is no set definition for “intolerable” behaviour. Examples include sexual or other harassment, coercion, bullying, threats and spreading malicious rumours, or inaction in preventing these acts from happening in the workplace. If the employee intended to resign anyway, for example because they had found a new job, the dismissal cannot be constructive.

For the dismissal to be constructive, the employee must not have intended to resign, except as a last resort to escape the intolerable conduct. To prove that the resignation was a last resort, the employee must have exhausted opportunities to resolve the matter through the available appropriate channels – such as speaking to a superior of the employer, lodging an official complaint or following the formal grievance procedures if these exist in the organisation.

Furthermore, as with other types of dismissal, constructive dismissal can be either fair or unfair, depending on the circumstances that made the working conditions intolerable.

The University of Cape Town (Law@Work) Practical Labour Law short course starts on 6 August 2012. For more information contact Nikki on 021 685 4775 or This email address is being protected from spambots. You need JavaScript enabled to view it., or visit www.getsmarter.co.za

This email address is being protected from spambots. You need JavaScript enabled to view it., or visit www.getsmarter.co.za