How to defend a constructive dismissal case
Fsp Business, 16 Sep. 2013
Tags: constructive dismissal case, how to defend a constructive dismissal case, dismissals, labour law, labour law and constructive dismissal
Constructive dismissal cases are different to other claims of unfair dismissal where you must prove the dismissal was fair. When your employee claims constructive dismissal, he’s the one who must prove the constructive dismissal. So how do you defend this case as an employer? Read on to find out…
According to the Labour Law for Managers Loose Leaf Service, the definition of a constructive dismissal can be broken down into the following three elements:
Element#1: The employee must have resigned from employment.
Element#2: The employee’s resignation must have been solely as a result of your conduct.
Element#3: Your conduct towards your employee must have made the employee’s continued employment intolerable or unbearable. Your intolerable conduct must be the reason why the employee resigned.
This means, the Court will look at your conduct as a whole and determine whether your employee can be expected to put up with it or not.
It’s important that you have a good understanding of this as it’ll help you defend your constructive dismissal case.
Here’s a checklist for defending a constructive dismissal case
#1: Your employee must prove on a balance of probabilities that you constructively dismissed him.
To do this, your employee must prove he had no alternative but to resign because of your intolerable conduct.
#2: The court or arbitrator will look at your conduct as a whole to see if it something the employee can’t be expected to accept it.
#3: The court or arbitrator will judge your conduct objectively on what a reasonable employee in the circumstances would generally feel.
#4: Your employee must have exhausted all reasonable alternatives (such as the grievance procedure) before resorting to resignation and claiming constructive dismissal.
#5: If your employee proves he was constructively dismissed, you must prove that the dismissal was fair. In other words, you had a fair reason to dismiss and followed a fair procedure.
Remember, your other employees may also develop a feeling of insecurity and look for other jobs if they see you as a boss who victimises employees. You could lose good employees and may also find it difficult to attract good employees if your reputation is tarnished.
To avoid having to defend constructive dismissal cases in the first place, FSPBusiness stresses that you have a grievance procedure in place. Implement a non-harassment and bullying policy, where employees who feel that they’re being unfairly treated by, for example, a manager have a remedy available to them and a procedure they can follow.
But knowing what your employee must prove when he claims constructive dismissal will help you defend a constructive dismissal case.
- » Four elements a legally compliant disciplinary hearing must have so the CCMA doesn’t overrule your dismissal
- » You could land up at the CCMA if you don’t know about the seven instances that count as an automatically unfair dismissal
- » Read this before you dismiss an AWOL employee or be prepared for an unfair dismissal case
- » Consider these four factors when deciding if dismissal is fitting
- » Break these three rules when you dismiss Paul and you’ll end up at the CCMA