According to the Labour Law for Managers Loose Leaf Service, the definition of a constructive dismissal can be broken down into the following three elements:
Element#1: Your employee must have resigned from employment.
Element#2: Your employee's resignation must have been solely as a result of your conduct.
Element#3: Your conduct towards your employee must have made your employee's continued employment intolerable or unbearable. And your intolerable conduct must be the reason why your employee resigned.
So what exactly amounts to intolerable or unbearable conduct?
Essentially that means the employment circumstances are so intolerable your employee can't stay and there wasn't a reasonable alternative at the time. As a result, he was forced to resign to escape the circumstances.
When your employee claims constructive dismissal, the onus is on him to prove the constructive dismissal.
While this is the case, you're better the constructive dismissal in the first place. It's not worth the costs!
Four examples that constitute as constructive dismissal
#1: You fail to pay your employee his salary
Let's say you're expecting a big order of supplies and you'll have to pay for them on delivery. As your cash flow is tight, you pay all your employees their salaries except Mthu. His salary is the highest. You use the unpaid salary money to pay for your order.
If Mthu resigns and refers a constructive dismissal dispute to the CCMA, you're highly likely to lose the case.
#2: Sexual harassment
For example, you ask Dina, your financial director to get into a sexual relationship with a customer to persuade him to place business orders with you.
As a result, Dina resigns in disgust and goes to the CCMA. She's very likely to win the case and be awarded compensation from you. As a senior manager, her remuneration might have been high, which will mean a high compensation order.
#3: Racial or other harassment
For instance, you promote Domiso, a union shop steward to a management position. You then try to coerce him into resigning from the union as you believe he has a conflict of interests. But he refuses to leave the union and you threaten to demote him.
You continually reprimand him unnecessarily. You move his desk out of his office and make him sit in a draughty passage.
Should he resign, the union will take you to the CCMA for constructive dismissal. You'll be charged with harassing Domiso due to his union affiliation.
#4: You require your employee to work under unacceptable workplace conditions
Let's say you fail to provide safety equipment, ventilation and or temperature control in your factory. Your employees all raise this as a grievance several times but you don't take it seriously.
As a result, all of your 1 000 employees, resign and go to the CCMA.
You're likely to be found to have made their continued employment intolerable. You may also be in breach of occupational health and safety laws. A compensation order in favour of 1 000 employees could bankrupt you.
Steering clear of these situations will help ensure you avoid costly constructive dismissal claims when your employee resigns.