CONSTRUCTIVE DISMISSAL | and everything you need to know about GRIEVANCES | South African Labour Law
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- čas přidán 9. 07. 2024
- This video is jam packed full of information about constructive dismissal. I cover the definition and where to find it in the Labour Relations Act. I take you through all the different things that Employees need to prove when claiming constructive dismissal at the CCMA or relevant Bargaining Council, with practical examples. I answer the commonly asked question, which is - Must employees always lodge a grievance before claiming constructive dismissal? I detail examples of when I believe it would be reasonable to expect a grievance to be lodged and when not. In this video I also cover what a grievance is and how to lodge a proper grievance, even if the company does not have a grievance policy. I also provide an explanation on the assumption that there should be no alternative other than resigning in constructive dismissal and also UIF considerations. Finally I briefly cover the latest case law related to constructive dismissal.
Website for documents: fourieemploymentrelations.com...
Constructive Dismissal Checklist: fourieemploymentrelations.com...
Grievance Template: fourieemploymentrelations.com...
Employment Relations Main website: www.employmentrelations.co.za/
Case Law: www.saflii.org/za/cases/ZALCJH...
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My Credentials:
Employment Relations practitioner for over 6 years, assisted over 500 clients in various industries across South Africa, over 2000 disciplinary hearings chaired, numerous CCMA cases, retrenchments, restructuring, contracts of employment, incapacity investigations, grievances facilitated, and negotiations.
I am also the Director of Fourie Employment Relations (Pty) Ltd and, lectured and mentored the subject of labour relations at the University of Stellenbosch.
MCom Cum Laude (Industrial Psychology)
BCom Hons Cum Laude (Industrial Psychology)
BCom Management Science (Entrepreneurship & Industrial Psychology)
Numerous courses completed on Nonviolent Communication
Time codes:
0:00 - Introduction
0:26 - Where to find constructive dismissal
00:57 - Definition
01:30 - Who has burden of proof in constructive dismissal
02:50 - Factors to prove at the CCMA
03:30 - Resignation
04:20 - No ulterior motive
04:55 - Example
05:44 - Was it the Employer's responsibility
06:27 - Example 1
07:29 - Example 2
08:22 - Threshold for Intolerable
10:15 - Subjective & Objective test
11:38 - Example
14:28 - Final point to prove
15:42 - Must an employee always lodge a grievance
16;28 - When to lodge a grievance
17:46 - What goes in a grievance
21:12 - Example
22:24 - When is a grievance not required
25:40 - No other avenues
28:04 - Recent case law
30:27 - For practitioners
31:06 - Disclaimer & Recommendation
31:53 - Concluding constructive dismissal
Disclaimer: This video is for educational purposes only. When in doubt always contact a professional to assist you with your specific situation.
Could you please also clarify to us non-ER practitioners what seems to sometimes be a fine line between constructive dismissal and unfair dismissal?
Great question, thank you! Constructive Dismissal is a type of dismissal, which could be deemed an unfair dismissal depending on the circumstances. In most cases (with very very few exceptions) constructive dismissal is also an unfair dismissal. The only exception that comes to mind was a case where the Labour Court found it was constructive dismissal, but that there was nothing the Employer could have done to prevent the situation from being intolerable. I hope that helps with distinguishing the between the two.
@@carmenfourie5346 Yes, thank you! And I guess in an unfair dismissal a person doesn't resign, as they would do in a constructive dismissal?
@@suefourie In other types of unfair dismissals the employee would not necessarily resign (such as being retrenched without proper procedure being followed or the ending of a fixed term contract where there was an expectation to renew the contract). But with an unfair constructive dismissal there is a resignation. Similarly - resigning after a transfer of contract where the terms & conditions were changed to be less beneficial for the employee - that would also be an unfair dismissal where the employee resigns. When we do these cases, we firstly establish "was there a dismissal and if so, what type" and then we look at the fairness of it and that would determine whether it is an unfair dismissal.
@@carmenfourie5346 Clear, thank you very much.
Extremely informative, thank you
I am very glad to hear.
Thanks Carmen, this has been very helpful and I would like to extend my gratitude in you having taken the time to do this video.
Thank you for letting me know! I appreciate your comment and I am grateful to hear the video was of some value.
Very informative and clear, thank you! Very handy for non-HR people to understand their options too!
I am glad that the explanations are informative and clear! Thank you for your feedback.
Thank you for making this unclear topic clear. The words Constructive Dismissal really don't describe what it means but since watching your video it's easy to remember. The real life examples helped a lot too.
@@suefourie I am glad you experienced it as such! That is what I was going for!
Really love your videos. Please do not stop making them. Very helpful :)
Thank you for your feedback. There has been a delay in getting the new videos out, but I'll keep putting them out. I appreciate the comment - it helps.
Thank you this was so helpful! I'm currently studying a degree in HR and I am writing Labour Relations Management today so this was very helpful. :)
I'm so glad to hear the video was helpful. I hope your test went well!
Thank you for this video. Incredibly informative.
I am grateful to hear.
Thank you. This is clear and informative. I’m facing this situation and was confuse either it’s - unfair or constructive dismissal.
Thank you for watching and for your feedback.
I happen to get a job offer the week prior to having to walk out of my job. Though I not had excepted it. There was an incident that happened a few days prior which pretty much broke the Stick off the camels back. My therapist had been encouraging me to look for a new job due to the harassment
So true it is very humiliating when someone shouts at you be it clients or colleagues. Female colleagues can be very rude and unfriendly.
Please provide a research worthy topic for a masters degree on constructive dismissal...
Hi there - I've been out of the academic world a little bit too long to be able to provide something useful here.
Thank you, need this for Thursday. Any chance you've covered the topic of disguised employment?
Do you mean hiring someone as a contractor where they are actually an employee?
HI MY CASE IS THAT THE COMPANY IS MOVING OUR DIVISION TO JOHANNESBURG FROM CENTURION AND MOVING THE BROOKLYN STAFF TO OUR BUILDING BUT I STAY IN PRETORIA AND TRANSPORT WILL BE DIFECULT FOR ME AND THEY ASK FOR TRANSPORT ALTERNIVE AND PRICES SO I DID BUT THEY SAID THEY CANT ACOMEDATE MY ISSUE SO I HAVE TO RESIGN
You don't need to resign -Your employer will need to go through termination process since they changed the requirements of the job and through that process determine whether the change in terms and conditions would be deemed reasonable or not.
Hi great video
My employer tried to pay me to drop an injury claim after a fall in a freezer at work. He then clocked me in for 3 days without my consent. He bribed me then falsified time sheets which is fraud. Is this a breach of contract?
I would suggest you approach the Department of Labour to assist you. It isn't a question of whether it a breach of contract, but rather whether it impedes with compliance of compensation of occupational injuries. They may have clocked you in to trigger pay roll to ensure you receive payment since an IOD isn't deducted from sick leave (I have seen a few employers do this), but you'll need someone to assist you to get a clear understanding of what happened.
Hi I just watched your video. I resigned due to having a miscarriage and told my boss that I will come to work but can't work back to back double shifts as we worked 13 hour shifts. He said some one was coming to assist me eventually no one came and I had to find someone. I could barely walk and send him multiple messages but instead gave me a 61hour week shift and told him I can't work those hours. I then couldn't do it as he didn't want to listen to me then I resigned. I went to ccma and the guy told me that I hadn't to resign that it would be pointless. I have the proof of the resignation and the time sheets with the messages I sent him. Do I have a chance?
I can't provide an informed response based off this information, but I would recommend seeing the case through at the CCMA. Depending on your earnings it does sound like the working conditions were contrary to those stipulated in the BCEA.
hi Carmen, I am desperately looking for assistance. how can I reach out to you?
You can email me admin@employmentrelations.co.za
Thanks Carmen. I have sent you an email string with regards to a grievance I have sent to my HR