Section 186 (e) of the Labour Relations Act (LRA) defines constructive dismissal as having occurred when “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. Many employers adopted a “resign to avoid dismissal” policy; in short, this would involve an employee being given a clear choice, resign or you will be dismissed.

Employees were given a choice to “resign” to either avoid disciplinary action, or a threat of dismissal. It has the potential of relieving all company resources associated with the hearing (chairperson, complainant and witnesses) from arduous and time consuming duties. These circumstances offer the employee, who may have “resigned” an opportunity to argue and claim constructive dismissal.

Any company’s disciplinary procedure is best served by proceeding with initiated disciplinary action in the face of a resignation. This serves two purposes. Firstly, the potential for a subsequent constructive dismissal claim is minimised, secondly the integrity of the company’s disciplinary procedure is upheld.

For further information on Unfair Dismissal or any labour related matters, you can contact Bernard Reisner:

W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za