What is Constructive Dismissal?

Constructive dismissal is defined as a situation in the workplace created by the employer whereby the employer makes work-life extremely difficult for an employee – to such an extent that the employee has no other option available but to resign.”

In fact the employee would have continued the employment relationship indefinitely had it not been for the employer’s unacceptable conduct. When any employee resigns and claims constructive dismissal, the employee is in fact stating that under the intolerable situation created by the employer, the employee can no longer continue to work, and has construed that the employer’s behaviour amounts to a repudiation of the employment contract. In view of the employer’s repudiation, the employee terminates the contract.

It is for the employee to prove that the employer was responsible for introducing the intolerable condition, and for the employee to prove there was no other way of resolving the issue except for resignation. It is required that the employee prove the introduction of any intolerable working condition, amounting to repudiation by the employer of the employment contract.

Section 186 (e) of the Labour Relations Act (LRA) defines constructive dismissal as having occurred when “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. Many employers adopted a “resign to avoid dismissal” policy; in short, this would involve an employee being given a clear choice, resign or you will be dismissed.

Employees were given a choice to “resign” to either avoid disciplinary action, or a threat of dismissal. It has the potential of relieving all company resources associated with the hearing (chairperson, complainant and witnesses) from arduous and time consuming duties. These circumstances offer the employee, who may have “resigned” an opportunity to argue and claim constructive dismissal.

Any company’s disciplinary procedure is best served by proceeding with initiated disciplinary action in the face of a resignation. This serves two purposes. Firstly, the potential for a subsequent constructive dismissal claim is minimised, secondly the integrity of the company’s disciplinary procedure is upheld.

To summarise constructive dismissal, an employee will have very limited prospects of success if they cannot show that the purported intolerability is indeed of a severe nature, and that they attempted to resolve the grievances prior to resigning.

For further information on constructive dismissal or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The (LRA) obligates employers to do everything humanly possible to avoid the dismissal of ill or injured employees. Find out here what this means for you

For further information on Unfair Dismissal or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

An employee may well be obliged to report knowledge of dishonest activities on the part of his or her co-workers. If an employer knows that some fellow employees are stealing from the employer, for instance, the employee’s failure to share that knowledge with the employer may well lead to the employee’s dismissal.

For further information on Unfair Labour Practice or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021-4233959
Fax: 021-4232105
Cell: 0824338714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

In addition to being issued and signed by medical practitioner, the BCEA importantly requires that the certificate should specify that the employee was too ill, or injured, to work for the entire period of his or her absence.

A valid medical certificate should also:

1. Show the date on which it was issued.
2. Show the date on which the employee was examined.
3. Stipulate whether the medical practitioner or registered nurse performed a medical examination on the employee or whether the employee communicated his symptoms to the medical practitioner or registered nurse.
4. Describe in general terms only the broad nature of the illness or affliction.
5. Contain the issuer’s name, qualifications, address and a contactable telephone number.

If a certificate does not meet the above criteria then you would, in our opinion, be entitled to refuse to pay the employee for any ill health absenteeism until such time as he or she presented you with a ‘proper’ medical certificate.

If an employee is absent for ill health reasons for not more than two consecutive days in an eight week period, or not more than two occasions during an eight week period, then he or she is not required to produce a medical certificate in order to be paid for such absences.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Those facing retrenchment or retirement can look forward to better tax breaks from this year, with retrenchment or retirement tax-free payments increasing from R30, 000.00 in a lifetime to R315, 000.00, effective from the 2012 tax year.

In other words, all retrenchment payments, plus retirement payments, plus lump sum payments from a pension or retirement fund on retirement or death are tax-free until the combined total of such payments reaches R315, 000.00. Once this limit is reached, all future payments are taxed in accordance with the rates applicable to lump sum payments from a pension or retirement fund on retirement or death.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

An employee’s failure to disclose information that would assist the employer’s investigation amounted to derivative misconduct.

In cases where derivative misconduct is alleged, an employer must show that the employee knew or could have acquired knowledge of the misconduct and that the employee unreasonably failed to disclose this knowledge to the employer.

An employee’s reticence in disclosing helpful information may lead to the interference that the employee has something to be justified in instituting disciplinary proceedings derived from an employee’s failure to offer reasonable assistance in detecting those actually responsible for misconduct and through his silence make himself guilty of a derivative violation of trust and confidence.

For further information Dismissal for misconduct, do not hesitate to contact Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The Commission for Conciliation, Mediation and Arbitration (CCMA) marked 15 years of existence.
The primary role is to settle labour disputes amicably which contribute toward labour peace. The CCMA has an admirable record that reflects the reality that the demand and need for CCMA services is increasing steadily. This is unlikely to change, given the latest dismal projections about economic growth and job creation prospects.

CONTACT CAPE LABOUR.

For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

The notion of a reasonable expectation calls for an objective inquiry to determine whether the facts proved would lead a reasonable employee to expect renewal. Facts relevant to that inquiry include the terms of the contract, the past practice of renewals, the nature of the work, the reason for fixed-term, any assurance that the contract would be renewed and failure to give reasonable notice of non-renewal of the contract. The applicant’s contract had been extended twice, and on each occasion he had been given advance notice. The respondent’s explanation for the decision not to renew might not have been particularly compelling.

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za

Applicant dismissed for failing to reach targets without being given reasonable opportunity to improve – dismissal unfair.

A sales consultant was dismissed for consistently failing to reach his sales target. He claimed that the target was unreasonable, that he had not been given sufficient time to close sales and that the downturn in the economy had made selling the respondent’s products more difficult. The respondent maintained that the applicant had agreed to the sales target he had been set, and that he had been counselled repeatedly. The commissioner noted that poor work performance is regarded as a consequence of incapacity, and that poorly performing employees must be given a reasonable opportunity to improve. In cases of dismissal for poor work performance, the employer must also prove that the employee failed to meet a performance standard, that he was aware of the required standard and that dismissal was an appropriate sanction for not meeting the required performance standard. It was common cause that the applicant was aware of the standards he had been set, and that he had failed to meet them.
The respondent had failed to properly investigate and remedy the reasons for the applicant’s poor performance. There had been no meaningful effort to render assistance to him through proper instruction, training, guidance or counselling. There could be no question of giving an employee a reasonable time to improve without taking these steps. Dismissal was, accordingly, an inappropriate sanction in the circumstances

For further information on any labour related matters, you can contact
Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za