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Five things Marcel Golding must prove to ensure his constructive dismissal claim succeeds

by , 29 October 2014
On Monday, respected businessman Marcel Golding, resigned as executive chairman of Hosken Consolidated Investments (HCI). This following a suspension and a failed attempt to stop a disciplinary hearing into his alleged gross misconduct.

But he isn't going down without a fight.

He's now planning to pursue a constructive dismissal case against HCI.

According to MoneyWeb, in an internal email addressed to HCI colleagues he said: 'The manner in which HCI intended to conduct my hearing as well as the circumstances which led to the decision to bring charges against me has rendered my employment relationship with HCI intolerable. I have been forced to resign and I will in due course be bringing a claim of unfair dismissal on the grounds that I have been constructively dismissed.'

For Golding's claim to succeed, he must prove five things.

Read on to find out what they are so you'll know what to expect should you find yourself in HCI's shoes.


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If your employee claims constructive dismissal, he has to prove these five things

 
When your employee claims constructive dismissal, he must prove it.
 
To convince an arbitrator or judge that constructive dismissal has in fact taken place, your employee must show:
 
  1. The employment circumstances were intolerable to the point that he couldn't go on;
 
  1. These unbearable circumstances caused him to resign;
 
  1. There wasn't a reasonable alternative at the time and he was forced to resign to escape the circumstances;
 
  1. The unbearable situation was caused by you (the employer); and
 
  1. You (the employer) were in control of the unbearable circumstances.
 
In a MoneyWeb report, labour lawyer Michael Bagraim, says proving a case of constructive dismissal is difficult. That's because the onus lies on your employee's shoulders to prove it. And 'that's notoriously difficult,' he says.
 
While this may be the case, we recommend you avoid situations that could lead to employees claiming constructive dismissal claims so you don't find yourself in HCI's shoes.
 
PS: Check out the Practical Guide to Human Resources Management for more information on constructive dismissal.


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