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What are the consequences of a constructive dismissal claim succeeding?

by , 23 December 2013
Your employee can take you to the CCMA even after he's resigned. The reason? Because he could claim you forced him to resign by making his employment intolerable. This is called constructive dismissal. If the CCMA finds you guilty, you'll face the following consequences...

When an employee claims constructive dismissal, he must prove the constructive dismissal.

In order to convince an arbitrator or judge that constructive dismissal has in fact taken place, your employee must show:

  • The employment circumstances are so intolerable he can't stay on;
  • The unbearable circumstances caused him to resign;
  • There wasn't a reasonable alternative at the time and he was forced to resign to escape the circumstances;
  • The unbearable situation was caused by the you (employer); and
  • You (employer) were in control of the unbearable circumstances.

If your employees' constructive dismissal claim succeeds, you'll face these consequences…

The Labour Law for Managers Loose Leaf Service explains that employees are usually awarded compensation for both substantive and procedural unfairness relating to their constructive dismissal.

This could cost you tens of thousands of rands.

This was the case in the matter relating to Du Plessis v JDG Trading (2003) 4 BALR 413 (CCMA). The employer was ordered to pay the employee R60 000 in compensation.

In Du Plessis v JDG Trading (2003) 4 BALR 413 (CCMA), Du Plessis was assigned unreasonable targets after she refused to accept a demotion.

The CCMA found the setting of the unrealistic targets was unfair and the resignation amounted to constructive dismissal.

In constructive dismissal cases, employees can be awarded up to12 months' pay as compensation.

When it comes to constructive dismissal cases, prevention is better than cure.

Is there a way to prevent constructive dismissal claims?

Yes. Avoid these five situations as they could lead to constructive dismissal claims.

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