Had enough of a bad boss?

The Labour Relations Act 66 of 1995 mentions a form of dismissal known as "constructive dismissal". It states that "dismissal means that . an employee terminated the contract of employment with or without notice because the employer made continued employment intolerable for the employee".

The Labour Relations Act 66 of 1995 mentions a form of dismissal known as "constructive dismissal". It states that "dismissal means that . an employee terminated the contract of employment with or without notice because the employer made continued employment intolerable for the employee".

In other words, where an employee resigns because he has, as a result of the employer's conduct, no option but to do so, the employee is considered to have been dismissed even though he himself terminated the contract of employment by resigning.

A claim of constructive dismissal can be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) and a maximum of 12 months salary may be granted by the CCMA as compensation.

However, an employee that resigns in this manner runs considerable risk. As a result, it is recommended that an employee first obtain advice and make certain that a constructive dismissal can indeed be proven.

If a claim of constructive dismissal is referred to the CCMA, the onus of proving the so-called dismissal is on the employee. The employee must prove that it would have been "intolerable" to remain in the employ of the employer.

If the employee is unable to prove that the employer made the employee's working conditions so "intolerable" that the employee had to resign, the employee's resignation remains valid.

It is very difficult to lay down concise guidelines as to what circumstances are sufficiently "intolerable" for a claim of constructive dismissal to succeed.

Circumstances that either the CCMA or Labour Court have found to be sufficiently "intolerable" include, among others, sexual harassment, continuous verbal abuse, continuous accusations of theft when no charges have been laid, the denial of company transport and the exerting of direct or indirect unjustified pressure on an employee to resign.

Lavery Modise is a director at Routledge Modise Attorneys and is assisted by Sian Wilkins, an associate at Routledge Modise Attorneys.

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