How to Prove You Were Constructively Dismissed/Fired

If you find that your employer has made your working conditions “intolerable” you can resign and claim “constructive dismissal”, regardless of your contract terms. However, you must ensure that the situation actually does fit in with what “constructive dismissal” is defined as. Many employees who feel that they were unfairly dismissed have lost their cases with the CCMA.

What is constructive dismissal?

According to Section 186 (1) (e) of the Labour Relations Act, constructive dismissal means that an employee terminated his/her contract because the employer made ongoing employment intolerable.

What is required to refer constructive dismissal?

A constructive dismissal claim cannot be processed without any proof. An employee referring the claim must be able to prove that the workplace/situation had become intolerable (and would be intolerable going forward) and that the employment agreement was then terminated by means of a resignation. This should be done in writing to serve as proof.

This doesn’t mean that it’s the end of the road though. The struggle may just be beginning. Employers can tell the CCMA that the allegations are false and that the employee did not resign due to unfair dismissal. They can claim that the employee was dismissed for acceptable reasons, or simply absconded.

In some instances, the situation can become quite complex. Take for example the following:

Anne arrives at work and has to deal with a stressful situation in the office. The boss of the company, surrendering to stress, yells at Anne to “get out and never come back”. Anne leaves and then claims constructive dismissal at the CCMA. After the case proceedings are complete, the Labour Appeal Court rules that because the employer did not make continued employment intolerable, the case is not one of constructive dismissal.

It’s important to note that an argument or harsh words in the work place during an isolated incident does not constitute a situation where continued employment is intolerable. Much the same, resigning as a result of work being harshly commented on or being asked to do something that seems unreasonable to you, are not considered constructive dismissals.

Examples of Workplace Conduct Considered Intolerable

• Forced transfers
• Sexual harassment
• Demotions
• Non-payment of salaries
• Abuse
• Assault

Potential Scenarios that do Constitute Constructive Dismissal

In some instances, an employee can be asked to resign after they have been accused of misconduct. If this happens and they aren’t provided with the opportunity to defend themselves by means of a formal disciplinary, this can be considered constructive dismissal. Another example of constructive dismissal is when an employee is offered the choice between a summary dismissal and retrenchment.

Things to Note When Considering Constructive Dismissal

The CCMA has seen many employees try to falsely claim unfair dismissal. In many instances, a new job offer has been made and the employee is looking for an easier way to resign without consequences. The CCMA takes all dismissal claims seriously and aims to process each case with meticulous care. The evidence and perceptions of both parties will be constructively and subjectively examined before a ruling is come to. It is important to ensure that you have no ulterior motives when processing a claim at CCMA.

The Process

If you have a legitimate claim to process with the CCMA, you must not wait too long. Claims must be processed within 1 month of resigning. Or at least 1 month from your last day of work at the company. Also, make sure that you seek out legal advice before starting the process. You will need to present your evidence and then provide opportunity for the employer to respond.

The CCMA does not make it easy for an employee to claim unfair dismissal. The process is designed to protect those who are legitimately unfairly dismissed. If you would like to process such a claim, we strongly recommend that you seek out legal advice before actually tendering your resignation.