Rescission and variation applications

[vc_row][vc_column][vc_column_text]

What happens when an employee refers a dispute to the CCMA or a bargaining council?

 

How does an employee refer an unfair dismissal dispute to the CCMA or bargaining council?

 

The employee must fill in a LRA 7.11 referral form and ensure that:

• The referral form is completed and signed;
• The referral form is served on the employer;
• The referral form is delivered to the CCMA with proof of service on the employer; and
• If the employee does not refer the matter within thirty (30) days of the date of dismissal, s/he must complete and attach an application for condonation form for late referral (see discussion below).

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]

What does it mean to serve a form on the employer?

The employee must provide a copy of the completed referral form and condonation application form, where applicable, to the employer, either by hand delivery, by fax, e-mail, or registered post and be able to provide proof that this was done.

It is recommended that the employer should advise the CCMA or bargaining council of any changes to its contact details as provided in the referral form as this will assist in ensuring that the correct person at the employer will receive all future communication from the CCMA or bargaining council. It will also prevent the matter being heard in the absence of the employer.  It is always useful to provide a cell phone contact number to the CCMA as they often provide details of scheduled cases by ‘sms’.

What are the time frames for referring an unfair dismissal dispute?

An employee has thirty (30) days from dismissal to refer an unfair dismissal to the CCMA or bargaining council. The thirty (30) days runs from the date of dismissal or the employer’s final decision to dismiss or uphold the dismissal.  All days must be counted including Saturdays, Sundays and public holidays and only if the last day falls on a Sunday or public holiday is it excluded. For example, employee X is dismissed on Friday, 1 September 2017. The 30-day referral period starts on Saturday, 2 September 2017 as you exclude the first day.  As the 30^th day falls on Sunday, 01 October 2017, that day is excluded because it is a Sunday and the 30^th day will then fall on Monday, 02 October 2017.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]What is the date of dismissal?

 

• Dismissal without notice: the date of dismissal is the earlier of the date on which the contract of employment terminated or the date on which the employee left the services of the employer.

 

• Dismissal with notice: If the employee was required to work out his/her notice, the date of dismissal would be the earlier of the date on which the notice period expired or the date on which the employee is paid all outstanding salary.

 

• Fixed-term contracts: the date of dismissal is the date on which the employer has offered to renew the contact on less favourable terms, or where the contract is not renewed – the date on which the employer notified the employee that the contract will not be renewed.

 

• Failure or refusal to reinstate or re-employ: the date of dismissal is the date on which the employer refused to reinstate or re-employ the employee.

 

• Failure to allow an employee to resume work: the date of dismissal is the date on which the employer refused to allow the employee to resume work.

 

What happens if the employee refers the dispute late?

 

When the employee has not managed to refer the dispute to the CCMA or bargaining council within thirty (30) days, the employee must apply for condonation for the late referral, in other words, to excuse or condone the late referral.

 

A condonation application must be completed by the employee or his/her representative and a copy thereof must be served on the employer and returned to the CCMA or bargaining council with proof of service on the employer attached to the referral form. The employer has the right to respond to the condonation application by affidavit within five days of receiving it.

 

The condonation application should deal with the points listed below, with the employer being entitled to respond accordingly:

 

• degree of lateness;
• reason why the referral is late;
• prospects of success (the employer may explain why it is likely to succeed in defending the claim against it);
• prejudice the employer will suffer if the matter would proceed (for example, the employer would be prejudiced by a long delay if witnesses are no longer available);
• any other relevant factors.

 

The employee may then reply to the response received from the employer.

 

The CCMA or bargaining council may decide whether or not to decide on the condonation application based on the written submissions only, or may decide to rather invite both parties to a hearing where they may make verbal submissions on these factors. The commissioner will then issue a condonation ruling.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]When is the matter set down for conciliation or con-arb hearing and how is the employer notified?

 

The CCMA must notify the parties of the hearing fourteen (14) days before the scheduled date unless the parties agree to an earlier date. Notification may be made in various ways, including by e-mail, fax, registered mail.  Where cell phone numbers are provided, it is common practice for a sms to be sent to the parties to notify them of the hearing.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]What happens if the employer receives a notice that the matter is set down for con-arb hearing?

Con-arb is a process where if the matter remains unresolved after conciliation, the arbitration hearing will start immediately, usually by the same commissioner and as part of the same process. Note that the employer or employee may object to con-arb seven (7) days before the scheduled date so that the conciliation hearing will take place, and if unresolved, the matter will be separately set down for arbitration. This does not apply to unfair dismissals related to probation.

If it the matter is scheduled for a  con-arb hearing, the employer should make sure to have all documents and evidence on hand and ensure that witnesses are on stand-by, and in reasonably close proximity to the CCMA or bargaining council in the event that the matter proceeds straight into arbitration.

 

What type of disputes are set down for a con-arb hearing?

 

Certain disputes may be set down as con-arb hearings. These include the following:

 

• disputes arising from the Labour Relations Act 66 of 1995 (LRA), including certain unfair dismissal and unfair labour practice disputes;
• certain disputes arising from the Basic Conditions of Employment Act 75 of 1997 as amended by Act 7 of 2018 (BCEA), including disputes arising from compliance orders;
• disputes arising from the National Minimum Wage Act 9 of 2018 (NMWA), including an unfair labour practice dispute resulting from a unilateral change to a person’s wages, hours of work or other conditions of employment in connection to the implementation of the national minimum wage.

 

 

Con-arb is compulsory and the employer may not object to it for the following disputes:

 

• an unfair labour practice or unfair dismissal for any reason relating to probation;
• a dispute relating to a compliance order referred in terms of section 69(5) of the Basic Conditions of Employment Act 75 of 1997 (as amended by Act 7 of 2018) (BCEA);
• a claim for failure to pay any amount owing in terms of the NMWA, the BCEA, a contract of employment, a collective agreement, or a sectoral agreement, referred in terms of section 73A of the BCEA.

 

What happens if the employee fails to attend the con-arb?

 

The commissioner may proceed with the matter and issue a certificate of non-resolution. However, if the employer has not objected to con-arb, the commissioner may proceed to the arbitration stage of the process and dismiss the matter.

 

What happens if the employer fails to attend the con-arb or an arbitration hearing?

 

A conciliation hearing cannot be postponed and if the employer cannot attend, it should object to con-arb. If the employer fails to attend the con-arb, and has not submitted an objection to the process, the commissioner will proceed with the conciliation and issue a certificate. The commissioner will then immediately start the arbitration proceedings and make a final and binding decision by way of a default arbitration award. This exposes the employer to considerable risk as the finding will be made on the version of the employee only.

 

If the employer discovers that a default arbitration award has been issued, and can show that it was not aware of the scheduled date of the hearing either because the notice of the hearing was not served on the employer or for some other reason, the employer may, within fourteen (14) days of becoming aware of the award, apply to have the award rescinded.

 

An employee who fails to attend the con-arb hearing may find him/herself in a similar situation as the commissioner may dismiss the matter on the basis of non-attendance at the arbitration hearing.  S/he may also apply to have the dismissal ruling rescinded within fourteen (14) days of becoming award of the ruling.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]Who can represent the employer at the proceedings?

 

At conciliation the employer may be represented by a director or an employee, or if it is a close corporation, a member or employee of the close corporation. If the employer belongs to an employers’ organisation it may be represented by any member, office bearer or official, as defined in the LRA, of the organisation.

If the employer is a registered employers’ organisation, any director or employee of an employer that is a member of that employers’ organisation or any official or office bearer as defined in the LRA and authorised to represent the employer.

Legal practitioners, candidate attorneys and labour consultants are not allowed in conciliation. A legal practitioner or candidate attorney may, however, represent an employer or employee during condonation proceedings.

 

At arbitration, legal representation is allowed except if the dispute being arbitrated concerns one of the following:

• a dispute relating to a compliance order issued by the Department of Labour (section 69(5) of the BCEA);
• an application to make a compliance order an arbitration award (section 73 of the BCEA);
• a dispute relating to outstanding payments arising from the BCEA, the NMWA, a contract of employment, a collective agreement or a sectoral determination (section 73A of the BCEA); and
• a dispute about the fairness of a dismissal where a party alleges that the reason for the dismissal relates to the employee’s conduct or capacity.

In such cases, a party may apply to be represented by a legal practitioner or candidate attorney on the basis that the case –

• is legally or factually complicated;
• is in the public interest; and/or
• if the comparative ability of the parties to deal with the arbitration is skewed.

The parties and the commissioner may also consent to legal representation at arbitration.

 

What happens if the matter is resolved at conciliation?

 

In the event that the parties reach an agreement to settle the dispute at conciliation – or during arbitration proceedings – the terms of the settlement will be included in a signed settlement agreement.

 

That signals the end of the dispute that has been referred to the CCMA or bargaining council.

 

Should the employer fail to honour the agreement, the employee may apply to the CCMA to have the settlement agreement made into an arbitration award.

 

In the event that the settlement agreement states that the employer will pay the employee compensation, such agreement (now an arbitration award) may be enforced through the office of Sheriff of the Court.  If it was agreed that the employee would be reinstated or re-employed, enforcement of the agreement (award) takes place through the Labour Court by way of contempt of court proceedings.

 

What happens if the matter is unresolved at conciliation and then is referred to arbitration?

The commissioner who conciliates the dispute will issue a certificate indicating that the dispute remains unresolved. Where the employee had not applied for a con-arb process, the employee must request arbitration within ninety (90) days of the certificate being issued, stating that the dispute remains unresolved after conciliation. This is done by filling out a form LRA 7.13. The form must be served on the employer and delivered to the CCMA with proof of service.

Arbitration is a process where a commissioner hears evidence and argument from both parties and makes a final and binding decision.  The parties may bring relevant forms of evidence and witnesses to testify. Each party may cross-examine the other party’s witnesses.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]When will the parties be notified of an arbitration hearing?

The CCMA must notify the parties of the date of the arbitration hearing at least twenty-one (21) days before the hearing.

 

May the parties request for a postponement of an arbitration hearing?

The employer and employee may agree in writing to postpone arbitration and submit such an agreement to the CCMA or bargaining council not less than seven (7) days before the hearing.

If there is no agreement either party may apply on affidavit for postponement, but a mere application does not guarantee that postponement will be granted.

 

What remedies can the CCMA or bargaining council award in an unfair dismissal dispute?

Remember that in an arbitration, the test is whether the employer has been able to prove on a balance of probabilities, that the dismissal was procedurally and substantively fair. The criminal proceedings test of ‘beyond a reasonable doubt’ does not apply to CCMA and bargaining proceedings.

If the employer fails to prove that the dismissal was procedurally (a fair procedure was followed) and substantively fair (for a fair reason), the commissioner may order:

• Reinstatement, which means that the employee will go back to work on the same terms and conditions that applied prior to dismissal. The reinstatement may be retrospective from the date of the dismissal or from a later date. Back-pay may be awarded from the date of reinstatement until the date that the employee is to return to work.
• Re-employment, which means that the employee will be employed on new terms and conditions.
• Compensation, meaning the employee must be paid an amount which is just and equitable to compensate him/her for the unfairness.

 

If the dismissal is found to be only procedurally unfair, the commissioner may decide whether or not to order compensation.  An order of reinstatement or re-employment only applies to a dismissal that is substantively unfair.

 

When will the parties receive a decision from the CCMA or bargaining council?

The parties will receive a decision within fourteen (14) days of the hearing unless this period is extended by agreement of the CCMA Director.[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

What happens when an employee refers a dispute to the CCMA or a bargaining council

[vc_row][vc_column][vc_column_text]

What are an employee’s obligations to an employer once the employment relationship ends?

 

Notice

 

The employee is obliged to give notice in terms of the contract of employment or if there is no contract, in terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA). The BCEA provides for minimum notice as follows:

• One week’s notice, if the employee has been employed for six months or less.
• Two weeks’ notice, if the employee has been employed for more than six months, but not more than one year.
• Four weeks’ notice, if an employee has been employed for one year or more or is a domestic worker or a farm worker who has been employed for more than six months.

An employee may not take leave, other than sick leave or maternity leave during the notice period.

If the employee refuses to serve a notice period, this amounts to a breach of contract of employment or law, and the employer is entitled to pursue its rights in this regard.

An employee who does not work out the notice period owes the employer an amount equal to what would have been earned in wages during such period. Employers often have difficulty claiming such money because the BCEA does not allow an employer to make wage deductions without an employee’s consent. This may be remedied by way of the inclusion of a clause to this effect in the contract of employment/written particulars of employment or a collective agreement.

 

Employer assets / belongings

 

At the conclusion of employment, the employee is obliged to return any items belonging to the employer. This would include any equipment, uniforms, or tools of trade that have been issued in order for the employee to perform their work.[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

UIF form

Certificate of service

[vc_row][vc_column][vc_column_text]

What are an employer’s legal obligations to an employee once the employment relationship ends?

 

The employment relationship ends when:

• The employee is dismissed;
• The employee resigns;
• The employee is retrenched;
• The employee retires;
• A fixed-term contract comes to an end;
• By mutual agreement; and
• The death of either party.

 

1. A certificate of service must be given to an employee on termination of his/her services.

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]

2. A letter of termination that briefly sets out the reasons for termination of services must be given to the employee in a form and language that the employee can reasonably understand. If an employee is illiterate or does not understand the contents of the letter, it must be explained orally by the employer, or on behalf of the employer by someone in a language that the employee understands.

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]

3. Notice – In the case of dismissal, unless there are grounds, such as gross misconduct, for dismissing the employee without allowing him/her to work out his/her notice period (‘summary dismissal’), the dismissal must be with notice. The employer can decide whether to allow the employee to work out the notice period, or to pay out the notice period without the employee having to remain at work. Payment in lieu of notice is advised when an employee is dismissed.

 

NB – An employer may not give notice to an employee when they are on leave, be it annual, sick, or maternity leave. Leave may also not be taken during the notice period. Statutory notice periods are as follows:

 

• One week’s notice, if the employee has been employed for six months or less.
• Two weeks’ notice, if the employee has been employed for more than six months, but not more than one year.
• Four weeks’ notice, if an employee has been employed for one year or more or is a domestic worker or a farm worker who has been employed for more than six months.

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]

4. Pay outstanding leave – This is compulsory for all forms of termination of employment.For an employee that dies in service, outstanding leave should be paid in accordance with the Master’s letter appointing an executor.
5. Deductions – An employer may not make any deductions from an employee’s remuneration unless the employee agreed to this in writing (including a contract) or the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
6. Unemployment insurance (ÚIF) – When an employee is dismissed, retires, is retrenched or passes away in service, or the contract comes to an end, the employee or the employee’s  dependants, are entitled to claim benefits from the Unemployment Insurance Fund.

To enable them to do this, the employer must supply them with a properly completed UI19 form which can be downloaded from the Department of Labour website, see link below.

[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]

The ‘basic guide to claiming UIF unemployment benefits’ is also available on the department of labour website.

 

7. Compensation for Occupational Injuries and Diseases Act (‘COIDA’) – Notice of employee leaving.
   The employer must notify the compensation commissioner when an employee has left the employer’s services when completing the monthly COIDA return.
8. Payroll – The employer should ensure that the employee’s details are removed from the payroll, and that access to the business premises is revoked or restricted – this applies when an employee leaves for any reason.

[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

What are an employer’s legal obligations to an employee once the employment relationship ends?

[vc_row][vc_column][vc_column_text]

What happens when a fixed-term contract comes to an end?

 

What is a fixed-term contract?

 

An employer may have a need for someone to fill a specific position or do a specific job. To meet this need, the employer may use a fixed-term employment contract.

 

A fixed-term contract is defined in section 198B of the Labour Relations Act 55 of 1996 (LRA) as one which expires upon:

1. the occurrence of a specified event;
2. the completion of a specified task or project;
3. a fixed date, other than an employee’s normal or agreed retirement

Note that section 198B of the LRA applies to employees who earn below a specific threshold as set out in section 6 of the Basic Conditions of Employment Act 75 of 1997.

 

For more information on section 198 contracts, see the Information Sheet “Different forms of non-standard employment contracts and when they are used”.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]What constitutes a dismissal in terms of section 186 (1) (b) of the LRA?

A dismissal arises, in terms of section 186 (1) (b) of the LRA if:

“…an employee employed in terms of a fixed-term contract of employment reasonably expected the employer-

(i) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or

(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee…”

 

If the contract period has expired, the contract comes to an end automatically. In such a case there is no dismissal.

 

Fixed-term contracts may terminate prior to a fixed date for a reason recognised in law – e.g. misconduct or poor performance. However, a fair procedure has to be followed as per the requirements of the LRA.

 

What must the employee prove in order to succeed with a claim of dismissal?

 

In terms of section 192 of the LRA, an employee bears the duty of proving that there was a dismissal. To prove that he/she was dismissed an employee must prove:

1. the existence of a fixed-term contract of employment;
2. conduct on the part of the employer that led the employee to reasonably expect:

• the employer to renew the contract on the same or similar terms, but the employer offered to renew it on less favourable terms ,or the employer did not renew it, or
• to be retained in employment on an indefinite basis but on the same or similar terms but the employer offered to retain the employee on less favourable terms, or the employer did not offer to retain the employer.

 

What situations are envisaged as dismissals in terms of section 186(1) (b)?

 

Four kinds of situations are envisaged:

1. The first, the most common, is where the employer does not renew the fixed term contract at all.
2. The second situation where this provision may come into play, is where the employer does renew the contract, but on less favourable terms than before.
3. The third is where the employer does offer to retain an employee in employment on an indefinite basis, but on less favourable terms.
4. The last situation is where the employer fails to offer to retain the employee on an indefinite basis.

 

What is meant by a reasonable expectation of renewal?

 

The fact that the employer does not renew the contract does not in itself amount to a dismissal. It is only if the employee had a reasonable expectation that the contract would be renewed that section 186(1) (b) comes into play.

The Labour Appeal Court has made a number of important points in this regard:

• The duty is on the employee to prove that s/he had a reasonable expectation of renewal.
• To discharge this duty, the employee must place facts before the commissioner to show what the expectation was based on. The test is objective: it does not focus solely on the employee’s wish or subjective feelings or perceptions.
• The test can be summarised as follows: “The enquiry is whether a reasonable employee, in the circumstances prevailing at the time, would have expected the employer to renew his or her fixed-term contract on the same or similar terms”.
• Fixed-term contracts almost always contain a clause stating that the employee should have no expectation of renewal. However, if there is such a clause in the contract, the employee will have to present even more evidence to show that he or she had a reasonable expectation of renewal. The employee’s evidence must, in such a case, be even more compelling.

Fixed-term contracts are often over-used or used inappropriately by employers.

Employees on fixed-term contracts have the same rights and obligations as indefinite-period employees. Therefore, if a fixed-term contract employee commits misconduct, this should be dealt with through the normal disciplinary procedures.[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

What happens when a fixed-term contract comes to an end

[vc_row][vc_column][vc_column_text]

What happens when an employee retires?

 

People often use the expression “going on retirement”. In many cases, employees are aware of their retirement age, and there are no issues when they retire. However, there are situations in which an employee does not want to “retire,” leading to the employer terminating the employment relationship. When an employer terminates the employment relationship this is termed a dismissal as per section 186 (1) (a) of the Labour Relations Act 66 of 1995 as amended (“LRA”).

According to section 187(1)(f) of the LRA an employee may not be unfairly discriminated against on any arbitrary ground, including age. The LRA goes on to state that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age.

 

Our courts have given the following important guidelines regarding termination of employment based on age:

 

• Dismissal based on age will be automatically unfair unless the employer can show that the employee has reached the normal or agreed retirement age for persons employed in that capacity.
• It is not unfair for an employer to terminate the services of an employee based on age at any time after the employee has reached his/ her agreed or normal retirement age.
• Employers may include the retirement age in the contract of employment. Under such circumstances this may be regarded as the agreed retirement age.
• The “normal retirement age” applies when there is no agreed retirement age. When determining the normal retirement age, the provident or pension fund rules, company policy or the “norm” (custom and practice) may be relevant considerations.
• If an employee who has reached or worked beyond the agreed or normal retirement age is dismissed for reasons unrelated to age, such as misconduct, incapacity, or the employer’s operational requirements, then the employer must ensure that the dismissal is both procedurally and substantively fair.
• Where an employee continues to work beyond the normal or agreed retirement age, his/her contract may be terminated at any stage thereafter, unless the parties had agreed to a fixed term of post- retirement employment in which case the employer should allow the employee to complete that term of employment.

[/vc_column_text][vc_column_text]

[/vc_column_text][/vc_column][/vc_row]

What happens when an employee retires

Constructive dismissal

[vc_row][vc_column][vc_column_text]

When does a resignation amount to a constructive dismissal?

 

What is a constructive dismissal?

 

In terms of section 186(1) (e) of the Labour Relations Act 66 of 1995 (LRA), one form of dismissal is when the employee terminates the employment contract (with or without notice) because the employer made continued employment intolerable.

 

This is generally referred to as constructive dismissal or where the employee is forced to resign. At first glance, this does not look like a dismissal at all as it is the employee who resigns. However, it is because the employer makes the working environment so unpleasant and intolerable that the resignation is regarded as a dismissal.

 

What must the employee prove to claim that there has been a constructive dismissal?

 

According to the labour court there are three requirements that an employee must prove in order to claim constructive dismissal, namely:

(1) the employee ended the contract of employment;

(2) the continued employment had become intolerable for the employee; and

(3) the employer must have made continued employment intolerable.

According to the constitutional court, the test for constructive dismissal does not require that the employee has no choice but to resign, but only that the employer should have made continued employment intolerable.

 

The employee must prove that there was a dismissal

 

In terms of section 192 of the LRA, an employee has the duty of proving that there was a dismissal. This applies to equally to constructive dismissals. It means that the employee must prove (by presenting evidence) that s/he resigned because the employer made the employment relationship intolerable.

Objective approach

 

When considering whether there was a constructive dismissal, an objective approach is used. The focus is not on the employee’s (subjective) feelings and perceptions. The employee must introduce evidence to show that he or she reasonably believed that the employer’s actions made further employment impossible.

 

The fact that the employment relationship has become ‘inconvenient’ is not enough. While a single incident may lead the employee to believe that the employment relationship is at an end, it is more often the case that there is a pattern of conduct on the part of the employer.

Taking disciplinary action or incapacity steps against an employee are also not a grounds for constructive dismissal.

 

Resignation must be the last resort

 

An employee should give the employer sufficient time to address the situation or problem.

 

Resignation must be the last reasonable resort available to the employee.  All internal procedures to air the grievances should be followed, and the employee should make every attempt to alert the employer to the problems and not just walk out.  However, in specific circumstances this may not be possible and this would be taken into account in dealing with the matter. For example, an employee who has been seriously assaulted by the employer cannot be expected to remain at work pending a grievance procedure.

 

The resignation must not be voluntary

 

The employee’s resignation must not be voluntary. This means that the employee must not have intended to terminate the employment relationship of his/her free will. An employee who resigns and then later tries to retract the resignation cannot claim to have been constructively dismissed.

 

Examples of constructive dismissal

 

There are many instances where a resignation may constitute a constructive dismissal.  Past cases offer some useful guidance:

• If an employee has been sexually harassed by a co-employee, has reported this to management and yet nothing has been done about the matter, a resignation by the employee may constitute a constructive dismissal. The employer is expected to take action to protect the victim of the harassment.
• Where there was suspension of employees without pay after the employer experienced financial difficulties.
• Where employees were encouraged to resign or face unfair summary dismissal.
• Where management promoted an under-qualified employee and failed to promote an employee without furnishing adequate reasons and knowing that this would be offensive to the employee.
• Where an employee of a temporary employment service was employed on terms that were exploitative and did not comply with the Basic Conditions of Employment Act 75 of 1997.

 

In the following cases the employee did not succeed in proving that there was a constructive dismissal:

• An employee resigned because the employer refused to provide the employee with salary-related information in terms of its existing policy. This was not conduct that (objectively) rendered the employment relationship intolerable.
• The employee failed to use the grievance procedure in circumstances in which there was no basis to conclude that the employer would not in good faith seek to resolve the grievance. The resignation was considered to be premature.
• An employee resigned, claiming unfair targeting for poor performance. The arbitrator found that, if an employer advises an employee of its required performance standards and gives the employee fair opportunity to meet them, the employee cannot terminate a performance review process by resigning and claiming constructive dismissal.

 

Constructive dismissal and section 197 transfers

 

Section 186(1) (f) of the LRA provides that a dismissal occurs where -[/vc_column_text][/vc_column][/vc_row][vc_row css=”.vc_custom_1526875685734{background-color: #dddddd !important;}”][vc_column][vc_column_text]“(f)      an employee terminated employment with or without notice because a new employer, after a transfer in terms of section 197 or 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]If an employee resigns after the transfer of the business, in order to claim constructive dismissal s/he must demonstrate that the terms and conditions or circumstances of work are substantially less favourable than with the previous employer. The new employer is entitled to place transferred employees on new pension and medical schemes, provided the benefits overall are not substantially less favourable. That will be determined by the facts of the case.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][/vc_column][/vc_row]

When does a resignation amount to a constructive dismissal