What’s the difference between constructive dismissal and summary dismissal?

Simangele Mzizi, Fsp Business, 28 Aug. 2014

Tags: dismissal, constructive dismissal, summary dismissal, difference between constructive dismissal and summary dismissal

There’s a lot of confusion regarding dismissal and this often leads to employers landing at the CCMA for dealing with dismissal incorrectly.

Some of the confusion is around the different forms of dismissal, to be more specific, constructive dismissal and summary dismissal.

The good news is our experts will set the record straight for you today so you’ll always handle dismissal in a legal manner.

Keep reading to discover the difference between constructive dismissal and summary dismissal.

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Explained: The difference between constructive dismissal and summary dismissal

Summary dismissal: Summary dismissal is when you dismiss your employee without notice. Your employee’s dismissal takes place immediately following a disciplinary enquiry and your employee doesn’t get notice pay. This is what makes it different from other dismissals.

By dismissing an employee summarily, you effectively declare you’re no longer bound to the contract of employment from that moment onwards. This stops your employee from continuing to work in terms of her contract of employment from the moment of termination.

This type of dismissal usually happens in cases where an employee commits a serious act of misconduct. Some examples of serious misconduct which may justify summary dismissal, depending on the circumstances in which they occur, include:

  • Gross dishonesty;
  • Wilful damage to property; and
  • Physical assault.
Now that you know what summary dismissal is, let’s look at constructive dismissal.

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Here’s what you need to know about constructive dismissal

Constructive dismissal: Constructive dismissal is when your employee terminates his contract of employment with or without notice because you as an employer are making it unbearable to continue to work in your company.

He could actually take you to the CCMA even after he’s resigned and claim you forced him to resign by making his employment intolerable.

In this case, the law considers you to have dismissed him.
Examples which can constitute a constructive dismissal include:
  • Failing to pay your employee his salary;
  • Victimising your employee in retribution; and
  • Tricking or threatening your employee into signing a resignation letter.
To avoid constructive dismissal claims, always treat your employee in a fair manner and don’t make their working conditions intolerable.

Knowing the difference between constructive dismissal and summary dismissal will help ensure you always handle dismissal in a legal manner.

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Gerald 2018-01-07 21:11:13

My employer did the following to me.

1. Probation was extended by 1 year instead of the usual 6 months and without consultation with me as per employment act .
2. My employer did not provide me with a job description and performance targets as per employment Act.
3 My employer numerously delayed payment of my salary contrary to the employment act and letter of appointment
4 My employer excluded me from Group life death in service benefits contrary to the employment letter and the practice on those of my category in the employment.
5 My employer duped me to go and have a meeting over my salary delays only to find it was a disciplinary meeting. I was not notified that it was a disciplinary meeting contrary to the employment act.

6. My employer after above (5) threatened me with either resignation or dismissal. I resigned with notice quoting clearly that I was resigning because the work environment he had clearly created could not allow me to continue.

7. My employer accepted my resignation but waived my notice with payment in lieu

8 My employer withheld my dues to recover a trade debt yet I didn't have any personal debt with him.

Can I sue in constructive dismissal? Kindly advise

Regards Gerald


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