Constructive dismissal is recognised by South African law when an employee has to resign from work as a result of the employer’s creating an intolerable working environment for the employee. The employees had no option but to resign.
What are unbearable working conditions?
Harassment.
If you are experiencing harassment at work verbally, physically, sexually or any form of harassment. Your resignation would be deemed grounds for being forced to resign from your job.
Bullying
Bullying is a repeated aggressive behaviour, where one person (or group of people) in a position of power deliberately intimidates, abuse, or coerce an individual with the intention to hurt that person physically or emotionally. Acts of bullying can be physical or verbal.
It would be a valid reason for claiming constructive dismissal if you’ve been harassed and victimized at work.
A constant form of humiliation at work, or being falsely accused of something you did not do, would also be grounds for you to claim constructive dismissal.
Constructive dismissal is where a person is forced to resign from work because of the working conditions that they are being placed under.
What evidence does a person need to prove a constructive dismissal case at the CCMA?
At the CCMA, the employee is stating that they have been forced to resign from work, the onus of proof is on the employee – to show that the working conditions were bad.
The employee must be able to come up with evidence to prove how bad the working conditions were.
There are 5 factors that an employee should consider in order to win constructive dismissal at the CCMA:
- The working conditions were truly and genuinely intolerable, you had no choice but to leave. You must provide some kind of evidence, such as WhatsApp messages, emails, dates and times of the incidents, as well as witnesses in order to prove your case.
- The unbearable working conditions were the cause of your resignation. Therefore, you were not planning to resign, this is what caused you to resign
- You had no alternative but to resign from work. You had no other choice as that was the only option available to you.
- The poor working conditions had occurred at work or during working hours, not at the park or sometime on the weekend – it happened during working hours at work
- The employer had the power to stop these bad working conditions for you. This information is important. Therefore, you must ensure you alert the employer regarding your situation before you resign. Notify your employer of your unhappiness with the way you are being treated and to request they please help you prevent this from repeating itself.
If you don’t alert the employer and you don’t give them an opportunity to fix it, can make your case at the CCMA very weak if the employer says he had no knowledge of this unfair treatment and would have stopped those bad working conditions.
In the event you are experiencing poor working conditions at your job and have notified HR of your situation, and they have not done anything to help you – send a follow-up email warning the employer if they don’t fix this situation, you will file a constructive dismissal claim at the CCMA. You can submit your resignation letter if they don’t listen to you, but make sure to mention that you’re being forced to resign.
After that you download a CCMA 7.11 form – which is the form that actually refers your case to the CCMA.
