So you’re unhappy at work, the boss is giving you a hard time, you feel like you’ve put your heart and soul into your work but it’s all unappreciated? And you’ve heard that if you resign under these circumstances, you can claim “constructive dismissal” and get a few months’ pay out of it? Well, you’ve heard right, but don’t start composing your exit letter just yet. Read on first…
The Labour Relations Act (LRA) allows for an employee to resign and claim constructive dismissal if “… the employer made continued employment intolerable for the employee”.
After reading this line, you may think “Wow! That describes my situation perfectly!”
But wait, there’s more. Normally, at a CCMA arbitration dealing with an unfair dismissal, the onus is on the employer to prove that the dismissal was fair. This is not the case with a constructive dismissal claim. The onus, in this case, is on the employee.
According to the LRA and case law, the test that must be employed by an arbitrator to assess whether a constructive dismissal claim has substance, is not subjective, but rather objective. This means that the employee’s feelings at the time of resignation are of little significance. The arbitrator is more interested in the actual circumstances in the workplace that allegedly led to the employee’s resignation.
Another part of the objective test is whether the employee’s resignation was the “last resort”. Did the employee exhaust all possible internal mechanisms in order to get the issue resolved before resigning, or did the employee simply resign in a huff?
And furthermore, an arbitrator must also look objectively at “the issue” to determine whether any reasonable employee would have come to the same conclusion, i.e. that the employer was making the workplace intolerable.
A full discussion about constructive dismissals could keep me typing until my fingers were numb. The message that I would like to bring across here is simply that constructive dismissal is a minefield that any employee should approach with great caution.The first requirement of a constructive dismissal claim, is that the employee needs to resign. This is a big step. And unless that employee is absolutely certain about what he or she is doing, my very strong advise is to get expert assistance first.