Johannes* says that when his boss changed him from a reaction officer to an armed guard, without any discussion or consultation, his working conditions became intolerable. All of a sudden he had fewer shifts (which means he made less money), he had to work in remote locations, and the hours he had to work meant he could never get a taxi back home. Things were so bad that Johannes felt he had no other choice but to resign. Scorpion Legal Protection discusses what kind of case this would be, and what Johannes can do.

Scorpion Legal Protection’s advice

Johannes could have a case of constructive dismissal. Constructive dismissal means that an employee ended a contract of employment because the employer made working for him intolerable (Section 186 (1)(e) of the Labour Relations Act). In constructive dismissal cases, it’s the employee’s responsibility to prove that the employer made work intolerable, and not the other way round. Examples of intolerable conduct include abuse, assault, forced transfers, sexual harassment, demotion, and failure to pay a salary. Resigning after getting a bad performance review is not constructive dismissal, neither is not liking your boss or that he shouted at you during an argument.

Johannes could have a case based on the conditions of his new position as an armed guard, because it could be seen as a demotion due to less shifts and less pay. If Johannes was forced to transfer to a new location, and this is what is making his work intolerable, then he could also have a case. If your employer is making your work intolerable, you should follow the company’s internal grievance procedure first, and give your employer an opportunity to address the issue. This shows that you, as the employee, did everything you could before taking the step to resign as a last resort.

If you’ve done this though, and still your employer has not tried to better the situation, you can refer an unfair dismissal case to the CCMA within 30 days of resigning or on your last working day. Remember, constructive dismissal is not an easy case to win at the CCMA – rather get legal help and advice from a lawyer before you resign.

Tips:

• In constructive dismissal cases, the employee has to prove that working conditions were intolerable.
• Gather as much evidence as you can against your employer – emails, recorded conversations, colleagues who can back-up your claims, etc.
• Get paralegal advice on your case before you resign, because constructive dismissal is difficult to prove.

If you have a query, follow us on our Facebook page and ask your question during our next Live Q&A (every first Thursday of the month).

* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.