Constructive dismissals and workplace pressures
The primary responsibility of the employer is to provide work and the primary responsibility of the employee is to make his/her services available to the employer. But what happens when the employee finds that the deadlines are too onerous, the instructions are excessive, performance is hindered, there is too much conflict in the workplace, and the working hours are too long? Employers’ tend to jump straight down the line of warnings and dismissals, or they will wait for the employee to ‘fire themselves’
A constructive dismissals is whereby the employee resigns because the employer has made continued employment intolerable, therefor the employee has terminated the contract involuntarily.
In order to pursue this matter through the CCMA, the employee must prove
1. That he/she has resigned
2. The resignation was a consequence of intolerable employment
3. The employers conduct was the root cause of the intolerable employment.
4. The employee would have continued employment but for the intolerable circumstances.
Examples may be harassment, hostile conduct, assault, unfair disciplinary procedures, unilaterally changing of the terms of employment, excessively difficult work situations, unfair demotion.
The employer must ensure that there are internal remedies available at the employee’s disposal, such as human resources avenues, lodging grievances and communicating with supervisors or managers, to ensure that should an employee be faced with intolerable working conditions they have an opportunity to resolve them.
However, if an employee resigns and then revokes the resignation, this will not constitute constructive dismissal because it will be seen as the employee accepting the conditions as tolerable.
Remember that not all workplace pressures should be resolved with resignation, because the employer is entitled to presume the employee can withstand the requirements of the job.
Rather take practical steps to manage work related stress and dissatisfaction:
1) Allow open avenues for employees to speak to superiors
2) Keep a good record of your employees’ job descriptions in order to clarify their roles when needed.
3) Provide support or training pertaining to the grievance.
4) Make sure your employees know that the employer must be made aware of any illness or worsening conditions.
5) Have clear policies in place with regard to harassment and grievances,
Workplace pressures and stress are not always avoidable, but some are manageable. Success is the product of how well you can play the hand you have been dealt with!
Written by: Erika Potgieter