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Will Stuart's resignation still stand if he loses his constructive dismissal case?

by , 16 September 2014
Your personal assistant, Stuart, resigns.

A few weeks later, he tells you through his representative that he's taking you to the CCMA for constructive dismissal. He says you made work unbearable for him and he mentions a number of incidents.

After sometime, you face off with Stuart at the CCMA and all your preparation pays off, you win your case and he loses.

Now you're wondering if his resignation still stands or if you have to take him back as your employee?

Read on to find out the answer so you can deal with constructive dismissal cases effectively.


Good news! If Stuart loses his constructive dismissal case, his resignation will still stand


It's true.

You don't have to take Stuart back to your company when he loses his constructive dismissal case.

Here's why…
 
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There are only three reasons you can fire an employee that the CCMA will consider 'fair' but there are hundreds of reasons you can fire an employee that's automatically 'unfair'!

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Constructive dismissal cases are different from any other forms of dismissals


With constructive dismissal cases, your employee has to prove his case. He has to show your conduct was unreasonable, intolerable and directly led to his resignation. He must prove he wouldn't have resigned if you didn't behave the way you did.

In fact, there are four key requirements Stuart must prove in a constructive dismissal case:
 
  1. He resigned or ended the relationship;
 
  1.  He resigned because he couldn't carry on working in the current situation;
 
  1. Your conduct was the cause of the situation; and
 
  1. He went through all your internal grievance processes before resigning.
 
So, if Stuart takes you to the CCMA claiming constructive dismissal, fails to prove all of the above and the Commissioner rules against him, you don't have to take him back. His resignation will still stand because the onus is on him to prove his case.

PS: We strongly recommend you check out the "You're Fired!" Your guide to substantive and procedurally fair dismissals. It has all the information you need to make sure your dimissals are legally compliant.


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