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Revealed: The three core elements of a constructive dismissal case

by , 29 October 2014
The saga between businessman Marcel Golding and Hosken Consolidated Investments (HCI) continues.

Last week, HCI announced that it had suspended its executive chairman Golding, pending a disciplinary enquiry into allegations of gross misconduct. Following his suspension, Golding lodged an urgent application with the court on Friday to interdict HCI's disciplinary hearing and his suspension on the grounds that it was unlawful.

On Monday, he lost the court bid at the Labour Court.

The judge ruled that the disciplinary process was lawful. He added that should Golding not be happy with the outcome of the disciplinary process, 'he has adequate alternative remedies at his disposal as provided for in the Labour Relations Act (LRA).'

It seems like Golding took that advice to heart. He resigned from HCI following his failed court attempt and announced he'll pursue a constructive dismissal case.

While we await how this saga will turn out, take the time to discover three core elements of constructive dismissal so you can understand how it works.


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Revealed: The three core elements of constructive dismissal

 
According to the Practical Guide to Human Resources Management, '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 as an employer.
 
Element #3: Your conduct towards your employee must have made his continued employment intolerable or unbearable. It must be the reason why he's resigned.
 
Our advice: Avoid a constructive dismissal claim at all cost.
 
If your employee challenges you for constructive dismissal like Golding and his claim succeeds, he could be awarded compensation for both substantive and procedural unfairness relating to his constructive dismissal. And this could cost you tens of thousands of rand.

Now that you know the three core elements of constructive dismissal, we recommend you use these eight tips to avoid constructive dismissal claims.
 
PS: For more information on constructive dismissal, get your hands on the Practical Guide to Human Resources Management.

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