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.

Related articles:


Latest:

Comments
0 comments




 
 


RSS Facebook Share the experience
Labour and HR Club
Topics
  • CCMA
  • Discipline
  • Dismissals
  • Employment Equity
  • Employment terms and conditions
  • Foreigners
  • Laws / Acts / DoL
  • Leave
  • Performance management
  • Policies and procedures
  • Recruitment
  • Trade unions
TOP ANSWERS 2016
Hi one of the companies under our main company is now moving to operate independantly as a subsidiary of the main...[read more]
Published at 07 Jul. 2016 1 answer
I have an employee who on a Friday COB, came to ask if he could take leave from Monday as his girlfriend is having a...[read more]
Published at 28 Jun. 2016 2 answers
Having been retrenched myself, it is with great regret that I will not be able to afford domestic help going forward....[read more]
Published at 29 Jun. 2016 1 answer
Good day I was involved in a near fatal car accident 5 yes ago. I was instructed by my neurons surgeon whom operated...[read more]
Published at 31 May. 2016 1 answer
Good day Is there a time frame during which you have to issue a written / final written warning? Eg within a week of...[read more]
Published at 13 Jun. 2016 1 answer
Good Day 1.How many hours are allowed to work for a week or for a month? 2. How many hours are allowed for rest for...[read more]
Published at 18 Jun. 2016 1 answer
Video Archive Video club
Your library of Free eReports
View full library