Topical Press ReleasesJanuary 29, 2021

The constructive dismissal paradigm

The constructive dismissal paradigm

Constructive dismissal remains one of the most difficult things for an employee to prove.

The rules that govern constructive dismissal haven’t undergone any major changes over the past three years, a fact that should give any employee pause before they embark down this difficult road. With many other forms of employment legislation, the onus lies on the company to prove that they didn’t do wrong by their employees. With constructive dismissal, however, the onus sits on the employee. According to Nicol Myburgh, Head: CRS Technologies HCM Business Unit, this puts immense pressure on the employee to prove that their relationship with the company was completely intolerable.

“The employee has to substantiate their constructive dismissal claim by ticking boxes and showing that they’ve put in all the work and followed all due process,” he explains. “This is very difficult to prove in many cases and the claim often doesn’t make it past the first hurdle.”

If you want to bring about a claim of constructive dismissal against your company, you will first need to attempt to resolve the problem using internal processes and systems. This means you will have to exhaust all the mechanisms available to you and prove that you are the target of victimisation, discrimination or targeting.

People do win constructive dismissal cases

“Intolerable conduct beyond the norm, such as threats, abuse or violent behaviour by an employer will be considered very carefully,” adds Myburgh. “But constructive dismissal excludes not getting a bonus or not liking someone’s management style. You have to prove that you’ve been the victim of a targeted and unpleasant personal vendetta and this is very hard to do.”

That said, people do win constructive dismissal cases, so if yours has documented proof, you have witnesses and you’ve gone through the internal company processes with zero success, then you could be one of those people. Just make sure that you approach the situation with caution and armed with the right information.

“If you win, there are several findings that can be made under the constructive dismissal banner that can include anything from zero to 24 months compensation,” concludes Myburgh. “It’s a challenging process, but one that can be won if you have the right information and the right case.”

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