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5 things your employee has to prove to win a case of constructive dismissal against you

by , 06 November 2013
We all like to think the working environment we create for our employees is a positive one. But in the high-stress environment that seems an inevitable part of the modern working world, some employees may find themselves in circumstances that they simply can't tolerate. And they'll resign to escape. When they do, you're at risk of claims of a constructive dismissal...

If your employee's claims are proved true by the CCMA, he'll usually be awarded compensation for both substantive and procedural unfairness relating to their constructive dismissal. This could cost you tens of thousands of rands. In fact, you may have to pay your employee up to 12 months' pay as compensation!

So what happens when the employee cries wolf?

The good news is it's up to him to prove that the dismissal was constructive. This is different to other claims of unfair dismissal where you, the employer, must prove that the dismissal was fair

Your employee has to prove these five things to win his constructive dismissal case
To convince an arbitrator or judge that constructive dismissal has in fact taken place, your employee must show:
1.    The employment circumstances are so intolerable that he can't stay on;
2.    The unbearable circumstances caused him to resign;
3.    There wasn't a reasonable alternative at the time and he was forced to resign to escape the circumstances;
4.    The unbearable situation was caused by the employer; and
5.    The employer was in control of the unbearable circumstances.
Generally, the experts at the Labour Law for Managers handbook say that the employment conditions really have to be terrible for the employee to have a strong case. After all, most employers make sure employees have a means to express their concerns to management and to raise any issues (e.g. dissatisfaction with their job).

Yet it's always a good idea to make sure managers and supervisors have good open communication with employees, so that any problems are dealt with effectively and timeously. 

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