Constructive dismissal is probably one of the most misunderstood concepts in South African Labour Law. On the one hand the employee may see any action by the employer that does not directly favour his position, as negative. The employer on the other hand is often restricted in doing the right thing for the success of the business.
In a dispute, the employee must prove that the working environment has become so bad due to the employer’s action, that he / she could no longer work there.
Not all unfavorable actions can be seen as constructive dismissal. The actions taken to save a company may affect some or all employees negatively, but it does not necessarily make the work environment unbearable.
The employer should have good reasons for his actions, and it needs to be explained to all affected employees and possibly to all staff members (communication).
Recently a case came across our desk where an employee made a poor judgement. He was summoned to the office where a final written warning was ready to be signed. He was told to resign and get one month pay in lieu of notice, or face a disciplinary hearing and if found guilty, be dismissed, and receive nothing.
Should the employee not resign, would his working environment become unbearable as his employer wanted to get rid of him? This is very difficult to prove as it is a subjective matter. However, with the documentation available, it could well be seen as a constructive dismissal. The consequences if the case if found to be a constructive dismissal are twofold:
The employee may be re-instated. This could be very unpleasant for both parties.
The employee may be financially compensated, well above what the employer was willing to pay.
If an employee did something wrong, he / she should be disciplined using a well thought out Disciplinary and Grievance Procedure. After the employee has been disciplined, he should be counselled in order to ensure the behaviour is corrected. Normally after two or three written warnings within a specific time period, can the employee be dismissed – this obviously depends on the severity of the offence.
In the case in question, the company did not have a proper Disciplinary / Grievance Procedure. This is a major cause of poor discipline in the workplace. Because of poor or no procedures, the action taken often gets overturned at the CCMA / Bargaining Council / Labour Court. The employers are thus reluctant to act, and the business suffers as a result of this.
Should you need a proper Disciplinary / Grievance Procedure or require more information, please go to our website: www.wilbrink.co.za or alternatively give me a call on 031 – 266 9035 or on my cell 083 265 3805 or e-mail me at firstname.lastname@example.org