When Kopano* spoke up against the unfair treatment his boss gave his fellow employees, his boss started treating him badly too – to the point where he felt all he could do was resign to get away from him.
He stopped talking to Kopano unless he absolutely had to, and when he did talk he was rude. When it came time for their annual increases, Kopano’s boss told him he would not be getting one this year. He humiliated him at meetings in front of his colleagues and blamed Kopano for things that weren’t his fault. He even told him to resign because he was going to ensure that he had a disciplinary hearing where he would be fired anyway. Kopano’s boss also decided to stop paying him a salary and replaced it with a commission structure.
Kopano’s co-workers told him that his boss was telling everyone he didn’t want Kopano there anymore, and was trying to figure out a way to get him fired. Kopano loved his job but couldn’t handle the stress anymore, and resigned. He feels that what his boss did was unfair, and wants to know if there’s anything he can do about it. Scorpion Legal Protection advises.
Scorpion Legal Protection’s advice
This is a possible case of constructive dismissal. Constructive dismissal can be described as a situation in the workplace created by the employer that makes working for the employee intolerable, to the point where the employee has no other option but to resign. Constructive dismissal can be hard to prove, as the responsibility to prove constructive dismissal lies with the employee.
The employee must be able to prove that:
- The employment circumstances were so intolerable that the employee could truly not continue to stay on
- The unbearable circumstances were the reason the employee resigned
- There was no reasonable alternative at the time but for the employee to resign to escape the circumstances
- The unbearable situation must have been caused by the employer
- The employer must have been in control of the unbearable circumstances
Kopano can refer an unfair dismissal case to the CCMA within 30 days of his resignation.
Tips:
- Employees looking to lodge constructive dismissal cases should ensure they have followed their company’s internal grievance procedure first. Resigning in the heat of the moment without proper procedure being followed will harm your case
- Constructive dismissal can be difficult to prove, so it would be wise to chat to a legal professional first to establish whether or not you have a real chance at winning. It’s not constructive dismissal if you’re just unhappy at work
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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.