Business Tech writes that legal experts at Schoeman’s Law have outlined worker rights when it comes to constructive dismissal in South Africa. Constructive dismissal is a situation where workers have been subjected to unbearable working conditions to the point that they feel that they have no choice but to resign or quit. In South African labour law, such an act is considered a form of unfair dismissal and carries repercussions for the company or employer that does it – and following proper legal processes can see the dismissed worker reimbursed. However, according to Schoeman Law’s Annelise Petzer, it is not a simple case of taking the employee’s word on the matter – and the burden of proof lies with them to prove their case.

Requirements for constructive dismissal

To establish a claim of constructive dismissal, three requirements must be met:

1. Termination of the employment contract: The employee must have terminated their contract of employment.
2. Intolerable working conditions: The reason for termination must be that continued employment has become intolerable for the employee.
3. Employer responsibility: The employer must have made continuous employment intolerable.

For a constructive dismissal claim to succeed, all three requirements must be present. If any of them is absent, it cannot be considered a constructive dismissal.

Elements of constructive dismissal

1. Intolerable working conditions

To prove constructive dismissal, the employee needs to show that the working conditions created by the employer were so intolerable that a reasonable person in their position would find it impossible to continue working. This can include harassment, bullying, discrimination, or unsafe working conditions. It is crucial to demonstrate that the employee resigned because of the employer’s conduct, which made continued employment intolerable.

2. Employer’s breach of contract

The employee must provide evidence that the employer breached a fundamental term of the employment contract. This breach can result from various actions or omissions, such as unilaterally changing terms and conditions, failing to address grievances, implementing unfair disciplinary procedures, or unjustified demotions.

3. Employee’s resignation as a result

The employee must establish a direct causal link between the employer’s breach of contract or the intolerable working conditions and their decision to resign. The resignation must be a reasonable response to the employer’s conduct.

4. Connection between breach and resignation

It is essential to demonstrate a clear link between the employer’s breach of contract, the intolerable working conditions, and the employee’s decision to resign. The employee should be able to prove that the employer’s actions or omissions directly led to their resignation rather than any unrelated factors.

CCMA proceedings and remedies

To pursue a constructive dismissal claim, the employee must lodge a formal complaint with the CCMA within 30 days of the alleged constructive dismissal. The CCMA will attempt to facilitate conciliation or mediation between the parties to find a resolution. If the dispute remains unresolved, it may proceed to arbitration, where an independent commissioner will make a binding decision.

Burden of proof

In constructive dismissal cases, the burden of proof rests with the employee. They must present sufficient evidence, on a balance of probabilities, to establish that constructive dismissal occurred. This evidence should support each element of constructive dismissal, including intolerable working conditions, the employer’s breach of contract, resignation, and the causal connection between the breach and resignation. Corroborating evidence, where possible, can strengthen the claim. If the CCMA finds in favour of the employee, they may be entitled to various remedies, such as compensation or reinstatement to their former position.