BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to: www.labourlawadvice.co.za Constructive dismissal means that the employee resigns and claims that the resignation occurred not because the employee wanted to leave but as a result of the employer’s intolerable conduct. Due to the fact that the employee alleges that the resignation was involuntary and was intentionally or unintentionally coerced by the employer, the resignation becomes a constructive dismissal. It is possible that this terminology originated from the idea that such a resignation submitted under duress can be seen to have been ‘constructed’ or ‘created’ by the employer. In order to convince an arbitrator or judge that unfair constructive dismissal has in fact taken place the employee must show that:
- The employment circumstances are so intolerable that the employee could truly not continue to stay on
- The unbearable circumstances were the cause of the resignation of the employee
- There was no reasonable alternative at the time but for the employee to resign in order to escape the circumstances
- The unbearable situation must have been caused by the employer
- The employer must have been in control of the unbearable circumstances.