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Constructive Dismissal

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.”

Discriminating against pregnant women

Discriminating against pregnant women

Pregnancy discrimination can take many forms, but women need to know that they’re protected and businesses need to know that they should cease and desist 

There have been plenty of horror stories about how women have lost their jobs, been actively pushed out of companies, or treated unfairly because they’ve fallen pregnant. However, few realise that there is basic legislation in place that protects them from unfair labour practices and from being dismissed because they happen to be carrying a baby. According to Nicol Myburgh, Head: CRS Technologies HCM Business Unit, there are loops and gaps in the legislation that both company and employee need to look out for.

“An employee is entitled to four consecutive months of maternity leave that can commence any time from four weeks prior to their expected date, or earlier if mandated by a GP, and they must be offered suitable employment on terms and conditions no less favourable than those of their existing employment during their pregnancy and for six months after birth,” he explains. “However, the regulations do state that these regulations must be adhered to if it is ‘practicable to do so’ and this is what opens up the gap.”

What gap? What defines ‘practicable’? What is reasonable? A company may turn to a pregnant employee and say she cannot stay in her job because it’s untenable for her to remain in that role – she cannot fully function in her hired job in that company. The company can then state that the person is not adhering to the terms and conditions outlined in her employment contract and dismiss her on those grounds. But this is not the only risk…

Some companies still discriminate against pregnant women

“It can go a lot of ways,” says Myburgh. “A company could say that they considered a person’s role and didn’t think it was a danger to her or her child, even if it is obviously so, with the intent of pushing her to a point where she has to resign. Companies can make life very difficult for people if they want to get rid of them. The problem is that proving constructive dismissal is extremely difficult and the onus is on the employee to prove it, not the employer.”

Women who are concerned about their rights should speak to a human resources professional, or the CCMA (Commission for Conciliation, Mediation and Arbitration) to unpack exactly what they are entitled to when pregnant and how to achieve those rights legally. If they feel they are being discriminated against, they need to document everything and ensure they follow the internal chain of command so that they have a paper trail proving that they have tried to resolve the situation.

“It’s a controversial conversation and it is deeply unfortunate that some companies still discriminate against pregnant women,” concludes Myburgh. “Fortunately, there are also organisations out there that care about their staff, giving them full salary, putting them on light duty and offering amazing benefits. There will always be those companies that do as little as possible, but they run the risk of losing not only their reputation but also great people to other companies that do their best for their people.”

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