The Resignation Process
More often than not, when an employee resigns it is occasioned by a positive move for the employee – they have left the employer for better opportunities, whatever form they may take. This is something worth celebrating – for the employee at least. However not all resignations come about as a result of a move to something better but more to leave a situation that the employee in question feels they can no longer endure.
Our law provides for an expanded definition of what a “dismissal” is. Not only does it include your “bread and butter” dismissals that follow after an enquiry, but can include a certain category of resignations. Such resignation will be construed as a dismissal which would allow the employee to approach the CCMA or Bargaining Council for relief. The resignation in such instances will be regarded as a constructive dismissal.
To persuade the CCMA that a constructive dismissal has occurred the employee will have to prove (bearing in mind that the employer would have every right to dispute any evidentiary submissions in this regard) the following:
- The employment circumstances were so intolerable that the employee could truly not continue to stay on.
- The unbearable circumstances were the cause of the resignation of the employee.
- 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.
The test is an objective one. In other words, it does not follow that every employee who is disgruntled at work and chooses to resign will have a claim that they have been constructively dismissed.
It has been my experience that most constructive dismissal referrals are unsuccessful. I think that often is the time that the employee him/herself fails to see that they are partly to blame for the fact that the situation has become (often in their mind only) intolerable.