What is constructive dismissal? (and how to prove it)

Is your boss making your job unbearable?

Labour relations attorney Natasha Moni explains what constructive dismissal is, and how to prove it.

A constructive dismissal is when an employee resigns due to intolerable conduct or working conditions caused by the employer.

Moni says an employee can argue a case of constructive dismissal if the employer's intolerable conduct is the only reason for the potential resignation.

Read: Tips on how to ensure that your career is on the right track

Moni advises that employees must ask themselves the following question:

But for the employer's intolerable conduct, would you still resign?

If your answer is "yes", then it is not a constructive dismissal. If your answer is "no", then it is a constructive dismissal.

Also read: 'It's not enough to just do the job' - Employee retention 101

According to Moni, constructive dismissal cases only have a 13% success rate at the CCMA.

She explains that it can be very difficult for an employee to prove intolerable conduct in a constructive dismissal case.

Case law defines 'intolerability' as sufficient, hostile, harsh or antagonistic. It must be objective and there must be a paper trail, Moni adds.

It's when the employer makes your working life or environment intolerable.

Natasha , labor specialist, Director at Moni Attorneys Incorporated, Acting judge at CCMA

The intolerable circumstances must be of the employers making.

Natasha Moni, labor specialist, Director at Moni Attorneys Incorporated, Acting judge at CCMA

Constructive dismissal is so difficult to prove. The success rate for an employee at the CCMA is about 13%.

Natasha Moni, labor specialist, Director at Moni Attorneys Incorporated, Acting judge at CCMA

The onus to prove these requirements is on the employee.

Natasha Moni, labor specialist, Director at Moni Attorneys Incorporated, Acting judge at CCMA

She answers questions from callers, shares examples of case law, and explains how to test constructive dismissal reasoning.

Listen to the informative conversation during the World of Work feature:


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