Always ask these five questions when disciplining or dismissing employees to ensure substantive fairness
Can your employee take you to the CCMA even if he resigns from employment? Yes, he can!
He can claim you forced him to resign. And if the CCMA finds in his favour, you'll be forced to pay your employee compensation. This could cost you thousands of rand
This type of dismissal is referred to as a constructive dismissal.
Read on to discover the four examples that constitute to a constructive dismissal so you can avoid giving your employees ammunition to make these claims when they resign.
What is constructive dismissal?
How do you dismiss correctly? How do you make a dismissal stick, even if it goes to the CCMA?
Simply click here to see how you can successfully effect dismissals that are 100% legally watertight and will hold up at the CCMA. You'll find a selection of the most important issues surrounding dismissals, taken from the Labour Law for Managers Practical Handbook.
We show you how you can justify your dismissals and protect your business completely. 29 experienced labour law consultants give you hands-on advice on the right strategy for making your dismissals stick.
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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? Keep reading to find out...
What is intolerable or unbearable conduct?
To hold a 100% legally compliant hearing, you have to fulfil all your chairman duties
Not fulfilling all your duties as a chairman can spell disaster. Not only could it be the reason your company lands up at the CCMA, but you might even have to reinstate the guilty employee!
Don't let this happen to you!
Your conduct must be objectively intolerable. This means it must be conduct that would generally be regarded as intolerable by any employee placed in that situation, explains the Loose Leaf.
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 off avoiding constructive dismissal in the first place. It's not worth the costs!
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