Constructive Dismissal
Can an employee tender his resignation of his own accord and then later claim he was unfairly “dismissed”?
The term “dismissal” is usually associated with the employer terminating the employment relationship. However, in some cases, it can also be associated with “resignation” where the employee resigns because the employer made continued employment intolerable. This is generally known as “constructive dismissal” and is provided for under section 186(1)(e) of the Labour Relations Act.
Some employers have been known to actively create circumstances which are unbearable for the employee with a view to pressurise him or her into resigning. There are also many examples where employers threaten an employee (who has committed some form of misconduct) into resigning so they may avoid the need for protracted disciplinary procedures, i.e. the employee is told: ”Resign or face a disciplinary hearing, which will result in your dismissal in any event.” Both of the aforementioned examples could give rise to a claim of constructive dismissal, depending on the circumstances.
In a claim of constructive dismissal the onus is on the employee to prove that:
- it was the specific actions of the employer (or lack thereof) which made continued employment intolerable for him/her, and
- he had no reasonable alternative other than to resign.
Each individual claim of constructive dismissal must be evaluated on its own merits as there is no definition as to what constitutes “intolerable” behaviour or conduct by an employer.
Pro-Act HR and IR Consultants can provide the necessary guidance to ensure you do not fall into the constructive dismissal trap. Similarly, we could assist you, should you be facing a claim of constructive dismissal. Contact us!
