We all want to build a successful career and thrive in the workplace, right? The office is meant to be a place where everyone should be able to put their best foot forward and excel in the profession they chose. And that’s certainly possible in an environment that’s inspiriting and free of unnecessary obstacles. However, that’s not always the case. We often see the “mean boss” stereotype play out in movies, and it is usually set up as an obstacle for the new fish-out-of-water employee to conquer, win over and co-exist peacefully with. Everyone wins in the end, right? But this isn’t Hollywood: in reality, of course, this isn’t quite how things pan out. Yes, while employers should set high standards and expect staff to deliver their best work, they also have the responsibility of creating a working environment where people work optimally. When an employer purposefully sets out to be hostile, makes the workplace unbearable and forces an employee to resign, this could be a specific case of unfair dismissal. Let’s put the spotlight on constructive dismissal in South Africa, your legal options and dealing with the emotional aftermath.

Brushing up on labour laws in South Africa: What is constructive dismissal?

To get the legal definition of this type of unfair dismissal, we need to turn to Section 186 of the Labour Relations Act. It says a constructive dismissal could’ve occurred if “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. Employers can create these kinds of environments with consistent verbal or physical abuse; by intentionally humiliating or bullying an employee in front of their colleagues, through sexual harassment or inappropriate advances; and withholding an employee’s salary (amongst others). 

What’s important to take note of here is that for there to be a possible constructive dismissal case, the employee must have terminated their employment contract via resignation, as it was their only reasonable option after facing continual mistreatment from their employer.

Legal note: while a constructive dismissal is a form of unfair dismissal, the two aren’t interchangeable: simply put, constructive dismissal is where an employee is forced to resign because of an employer’s actions and behaviour, while an unfair dismissal is when an employer ends a working relationship with an employee in an unlawful manner. Here’s some Basic Legal Advice on Dealing with Unfair Dismissal

Getting your legal ducks in a row: How to prove constructive dismissal in South Africa.

After going through the emotional strain of dealing with a toxic work environment, the last thing you want is for your case to be thrown out at  The Commission for Conciliation, Mediation and Arbitration (CCMA) because you don’t have sufficient proof. Constructive dismissal cases are notoriously difficult to prove because an employee terminates their own services, and the onus will be on them to prove that it was that the dismissal was constructive. Be sure to cover your bases by:

  • showing the CCMA that you put in writing, to your employer, that if their unfair or abusive conduct carries on, you will have no choice but to resign and claim constructive dismissal.
  • having evidence to prove the working environment was intolerable. Examples of this could be emails that contain verbal abuse; bank statements showing late or no payment; comments from colleagues; and evidence to show you tried to resolve the issue internally (we’ll delve deeper into this just now).
  • showing that you were out of reasonable alternatives and that resigning was the only way to escape the situation.
  • demonstrating to the court that the employer knew about the hostile environment that was being created and did nothing to remedy it

Legal note: Proving a constructive dismissal claim can be tricky, so it is best not to resort to allegations or evidence that may be seen as baseless by the court. This could be not receiving a bonus, unfair performance evaluation or a promotion that didn’t come to fruition. 

Important: Be sure to exhaust the company’s internal grievance procedures BEFORE approaching the CCMA.

Many employees hit a dead-end in claiming constructive dismissal because they have not used all the channels available in the company to address and resolve the issue before resigning. As mentioned, proving this when the case goes to the CCMA will play a big part in whether or not your claim is successful. However, in some instances, smaller companies may not have these procedures in place or do not have an HR department at all. This will then become an essential part of your claim: i.e.- you didn’t have the option to resolve the matter internally. You can read up on procedural fairness in this feature.

How and when to refer a constructive dismissal dispute to the CCMA.

Timing is everything! If you are left no choice but to resign, and you want to pursue legal action, you must refer the case to the CCMA within 30 days of your official resignation date. If you miss that timeframe, you can apply for a condonation (which basically states your reason for referring the case late), but it does increase your chances of rejection.

Be sure to fill in a referral form, which can be downloaded from the CCMA’s website. Once completed, this form must be served on your employer. After your employer has been served, the referral form must be served on the CCMA. Be sure to include proof that your employer has received the document. 

Focussing on the “constructive”: how to optimise your office experience.

Firstly, let’s be clear: no one should put up with abuse and hostile work conditions, and they should pursue justice. However, you also don’t want to find yourself taking on a claim purely based on stress, anxiety or lack of communication in the workplace. We already know that many people are dealing with mental health issues in the office. As many as one in six South Africans suffer from anxiety, depression or substance-use problems according to statistics released by the South African Depression and Anxiety Group (SADAG)

With that in mind, it’s best to try and be as proactive as possible and empower yourself in the workplace. And this, like with most healthy relationships, starts with open communication and transparency between you and your employer. Here are some constructive steps to take:

1. Ask your employer about staff appraisals and collaborating on Key Performance Indicators (KPIs). One of the best ways to avoid any miscommunication and unnecessary conflict is for everyone to be on the same page about what they need to do and how they will be assessed. If any work-related issue arises, you both have something concrete to refer to and come up with the best and fair solution.

2. Ask about the internal policies regarding grievance procedures and disciplinary hearings. One of the best ways to feel empowered is to know you have options to air your grievances and be heard.

3. Communicate, communicate, communicate! Regular meetings, catch-ups, appraisals and e-mail confirmations are all ways to ensure everyone’s on the same page, and more importantly, give you peace of mind regarding what’s expected of you and how to go about asking for assistance if needed.

We’ve Got Your Back: Need Expert Legal Assistance with a Constructive Dismissal Claim?

LAW FOR ALL provides professional legal advice to all Policyholders, so if you want a caring friend in the law on your side, feel free to get in touch. What’s more, we can assist with referring your constructive dismissal case to the CCMA.