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Two things you should know about constructive dismissal when it comes to employee resignations

by , 26 October 2015
Resignation is, by definition, the termination of employment by an employee. In other words, it demonstrates her intentions to leave your company and, in so doing, end your relationship with her and vice versa.

It's different to a mutual separation agreement, in which both of you agree to end employment.

In order for a resignation to be in effect, it must:

· Be in words or in conduct; and
· Show a clear and unambiguous intention to end the employment contract.

Now, when it comes to resignations, it's worth taking note of resignation in relation to CONSTRUCTIVE DISMISSAL.

Here are two things you should know about it:

1. What is constructive dismissal?

Constructive dismissal is when an employee resigns because working for you is considered unbearable. This is because of your conduct or your treatment of him.

One rather alarming example has to do with an employee resigning because of sexual harassment in the workplace and your failing to deal with the matter. If she claims constructive dismissal, you could have to pay her 24 months' remuneration as well as other expenses.

2 out of 5 women in South Africa have been victims of some form of sexual harassment in the workplace!

Do you know what procedures to follow if one of your employees lodges a sexual harassment complaint?
2. Three requirements for constructive dismissal:

There are three requirements for constructive dismissal. They are:

·        Your employee resigns because of your conduct;
·        Your treatment of the employee has made employment unbearable for him; and
·        Resignation is the last resort for the employee.

Remember,  if your employee resigns because of the above-mentioned points, he can refer the matter to the CCMA. So be careful when dealing
with anything like this.

It's also worth noting that if an employee is unhappy without it actually being your fault, then he can't claim constructive dismissal.

*There was what you must know when it comes to constructive dismissal in terms of employee resignations. To learn more, subscribe to Labour Law for Managers.

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