A common occurrence is when employers approach an employee prior to a disciplinary hearing and offer to allow that employee to resign instead of “facing the music”. This in itself is not unfair and certainly does not constitute a constructive dismissal. The employee must prove in constructive dismissal circumstances that the situation had become absolutely intolerable.

In an interesting arbitration award Charles Matlala vs Debt Control Management, it was held that the resignation does not remotely constitute a constructive dismissal and that the expectation to reward the employee for having forced him to resign was unfounded and in fact the employee had to pay the legal costs.

It is suggested that employers advise the employee, in front of witnesses, that if the employee chooses to resign he/she may do but it must be pointed out that there is no pressure being brought to bear upon the employee.

Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za