As South Africa progresses on its journey toward improved compliance with the Protection of Personal Information Act (POPI), issues surrounding data and cyber security are fast becoming a focus area for businesses.
Constructive Dismissal is defined by the Labour Relations Act in Section 186 (1) (e) as ‘an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.’ Simply stated – constructive dismissal can be when an employer makes life so awful for an employee that they are forced to resign.
It is fairly hard to prove constructive dismissal, and there are many people who try and claim that they were constructively dismissed after they have resigned from their jobs, and then realize that they cannot claim UIF. In a true case of constructive dismissal, even though the employee did resign, it is seen as an unfair (constructive) dismissal, and so one can claim UIF, as well as usually some form of compensation for the unfair dismissal.
In order to successfully lay a claim of constructive dismissal, there are a few things that the employee will need to prove. (Note that in the case of a constructive dismissal, it is the employee who has the burden of proof. If and when they have successfully proved constructive dismissal, it is then for the employer to try and prove that they did nothing wrong.)
There are a number of factors that need to be proved in order to successfully win a case of constructive dismissal:
If any of the above cannot be proven, then it is unlikely that a case will be successful.
In order to win a case of constructive dismissal, first of all the employee must have resigned. If the employee was fired, then it cannot be constructive dismissal (although there may still be grounds for unfair dismissal.) It would be easier to prove constructive dismissal if there was a written letter of resignation which included the reasons why the employee felt they were forced to resign.
The employee should also have tried to follow some form of formal grievance procedure and been unsuccessful. There needs to be proof that there were no alternatives for the employee but to resign. If they have not followed a formal grievance procedure, then it cannot be seen that there was no reasonable alternative.
They will also need to prove that the unbearable circumstances were the cause of the resignation. It needs to be proven that there was no other motive for resigning, and that the employee would have continued to work indefinitely if it was not for the unpleasant circumstances caused by the employer.
It is also important that the unbearable circumstances were definitely caused by the employer. It may be the case that it is in fact a lower-level supervisor or manager who made the employees life intolerable, and not the employer themselves. If the employee has not made any attempt to get their employer to deal with the problem, then it cannot be seen as constructive dismissal, as the employee has not made all attempts to resolve the matter.
No. It is not legal to force somebody to resign or make their lives so awful that they feel like the only option they have is to resign. It can land you with a fairly large settlement payment if the CCMA or court finds that constructive dismissal has occurred.
There are no cut and dried rules on what does or does not constitute Constructive Dismissal. However here are some examples of cases that have been successful at the CCMA:
The following are cases where the CCMA ruled against Constructive Dismissal:
No. One of the requirements for constructive dismissal is that the employee must have resigned. Being made redundant is not a resignation. Resigning in the face of retrenchment would also not be considered constructive dismissal, as it needs to be seen that the employee would have been able to continue working indefinitely if it was not for the intolerable behaviour of the employer.
This is entirely up to the judge or arbitrator. Section 194 of the LRA provides for a maximum penalty of 12 months’ salary, but this does not mean that an employee who wins a case of constructive dismissal will always receive the maximum amount.
Masa Outsourcing is a South African labour powerhouse placing thousands of staff countrywide through its various divisions and entities. We have offices in Johannesburg, Cape Town, Bloemfontein, Port Elizabeth and Durban.
Four decades of experience in Vetting and Hiring, Recruitment, Site Operations, Industrial Relations Solutions, Payroll Services, Staff Management, Human Resource and Labour Management; we are the only Staffing Specialist positioned to manage your labour hire needs comprehensively.
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It’s safe to say that the last 18 months have been a challenge for jobseekers, employees and employers alike with the onset of the COVID pandemic and the subsequent shift in the professional work environment. In many industries, where possible, a remote working setup has been implemented to best protect ourselves and the people around us.
This was previously thought to be impossible but all of us, all over the globe, have been forced to adapt and it’s become quite clear that remote working is not only possible, but in many ways beneficial.
Families are able to spend more time together, employees save money on transport costs and employers can even save on their overheads for office space and infrastructure.
Having said that, it also comes with its very real challenges which we’ve been forced to overcome on a personal and organisational level. We’ve all had to learn and master the online meeting, the use of personal messaging software and the use of video calling services such as Skype and Zoom.
One aspect of the professional realm that has also been forced to shift is the recruitment function, with many companies choosing not to or being unable to interview face-to-face, thereby making it necessary to interview via the digital channels mentioned above. The preparation process for a video interview differs slightly from that of a tradition interview, let’s have a chat about how to best prepare for a video interview.
It goes without saying that for any interview the standard rules for success will apply.
Make sure to do your research on the employer that you’re interviewing with, this will allow you to ask intelligent questions and have informed discussions with your interview or interviewers, immediately putting you in a favourable position.
The next step is to ensure that you’re dressed for the part, make sure you’re in the appropriate dress wear for the position and arrive neat, a good first impression is extremely valuable.
If you’re interviewing in person be sure to arrive timeously, with enough time to complete any documentation that might be necessary before the interview. The experts at Greys Recruitment recommend arriving 15 minutes prior to your interview.
In the event of a video interview it’s best to be ready to join the meeting a few minutes early, in case your interviewer is ready early. You also need to be mentally sharp to stand out from the crowd so it pays to get enough rest the night before.
Make the effort to brainstorm and visualize the interview prior to entering it, prepare any questions that you may have and try to pre-empt any questions that you may be asked. Write them down. This will allow you to confidently address any questions and will likely impress you interviewer.
Finally, and most importantly for video interviews, is to understand the video calling platform that you will be using for the interview. Your interviewer will likely be extremely busy and may have multiple interviews lined up for the same day; you cannot afford to have problems entering the meeting due to technical issues. Taking the time to set up your account and test the system beforehand will ensure that the video interview goes smoothly.
Following the above advice will place you in the best possible position to nail that interview and land your dream job. Remember, looking for a job is a job within itself and the more work you put into the preparation stage the better chance of success you’ll stand.
Best of luck to you!
Looking for a job?
Please visit our jobseeker page, and upload your C.V to our nationwide database! Should a potential job offer open, and you are considered, we will contact you!
Looking for staff?
Let our dedicated and hard-working team of consultants find you the perfect candidate. Please visit our employer page and tell us what you are looking for!
Recruiters are very busy individuals and time is of the essence in this industry. When it comes to sourcing candidates that are looking for jobs, this process takes a while, especially when it comes to finding contact information! This blog post will highlight briefly, how the recruitment process works and some of the best practices when it comes to making yourself easy to find.
Summed up, a client needs a staff member, so they request the assistance of a recruiter in finding them the perfect candidate. The recruiter then needs to find candidates by any means necessary. The first way, is to go online, and try and locate candidate C.V’s. After they have found a few viable candidates, they need to contact those candidate. Now the problem is, a lot of people do not have enough of an online presence for them to do so, and then miss the opportunity to find a job or a better one in most cases.
As you can see, recruiters use various online portals to source their candidates. This can be done by advertising and having the candidates apply, or actively looking for them on job seeker portals.
Here is a list of some of the portals they use:
One way of always making sure you can be found is having your UPDATED C.V on the various jobseeker portals, one example being Pnet. This is a portal where you can upload your C.V, elaborate on your qualifications and skill set, and leave contact information! This allows recruiters to save time by finding your updated C.V and having your contact information ready for them to call you.
Facebook and Linkedin are the primary social media portals that recruiters use to try and find extra information about the candidates they are trying to source. They look at:
Advice to you is; always keep this up to date, and remember that your social media profiles speak volumes about you, and if you are in the job market, you want to make sure that your profile gives off a professional feel.
See how important social media presence and profiles are?
Looking for a job?
Please visit our jobseeker page, and upload your C.V to our nationwide database! Should a potential job offer open, and you are considered, we will contact you!
Looking for staff?
Let our dedicated and hard working team of consultants find you the perfect candidate. Please visit our employer page and tell us what you are looking for!
