Conventional wisdom tells us that when an employee takes a decision to resign from his or her job, that it means that the employee would not be entitled to any claims against the company relating to his or her decision to resign.
What happens if the conduct of the employer towards the worker was so bad that it left the worker with no other choice but to resign Or where the workplace environment was made so intolerable, that it left the employee with little or no option but to resign In these scenarios a worker could lodge a claim against the employer under the banner of "constructive dismissal".
Section 186 (1) (e) of the Labour Relations Act says that in circumstances where "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee", this would constitute a dismissal. The resignation was therefore not a voluntary one and because of the employer's conduct, the employee was forced or coerced leave his/her employment. Off course if an employee resigns so as to avoid any disciplinary hearing or because of any misconduct on his path, that will not be considered as a constructive dismissal.
Constructive dismissal ultimately means that the employee was unfairly dismissed. To prove this, the employee must prove two vital facts. Firstly that the resignation was not voluntary. Secondly that the resignation was due to the conduct of the employer who made it intolerable for the employee to continue working. However constructive dismissal claims are notoriously difficult to prove. In normal dismissals claims, the onus lies with the employer to prove that the dismissal was procedurally and substantively fair.
However in a constructive dismissal claim, the burden of proof shifts from the employer to the employee. Now the employee must prove the constructive dismissal, on a balance of probabilities. The employee must prove the intolerable work conditions. The employer does not need to show that he did not introduce any intolerable condition. If the employee cannot prove the introduction of intolerable condition at work, he/she will not succeed with the claim of constructive dismissal. Once the employee at the CCMA proves a constructive dismissal, the onus shifts to the employer to prove that the dismissal was fair.
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