3. Constructive dismissal
Section 186 (1) (e) of the LRA defines a constructive dismissal. The section states that;
“Dismissal means that employee ended a contract of employment with or without warning because the employer made continued employment unbearable for the employee.” Termination of employment in these circumstance is known as a ‘constructive dismissal.’ Although the termination of employment occurs at the employee’s initiative, the law regards the termination as a dismissal since the conduct of the employer ‘forces’ the termination of employment.
If a constructive dismissal is established, this does no more than establish the existence of a ‘dismissal’ for the purposes of the Act. If the employee establishes a constructive…show more content… The others are incapacity or poor work performance and operational requirements. The difference between these grounds of dismissal is that employees who commit misconduct can be held accountable for their actions. Regrettable, dismissals for misconduct generate the overwhelming majority of cases that come before the CCAM and bargaining councils, and the Labour Courts by ways of review. Grogan also points out that in the disciplinary context, dismissal is considered the ‘ultimate’ sanction. The provisions dealing with dismissal for misconduct in The Code of Good Practice are mainly based on principles developed by the Labour Courts under the 1956 LRA. The Industrial Court split the inquiry into two: (1) was there a good reason to dismiss (i.e. was the dismissal substantively fair)? (2) Did the employer follow a fair procedure before deciding on the penalty of dismissal procedurally…show more content… Whether a dismissal is summary or on notice, or whether it takes one of the novels additional forms specific in Section 186, there are three broad standards for a fair dismissal for misconduct, namely:
a) The reason for, misconduct must not be classifiable as automatically unfair.
b) There must be a valid reason for the termination of the contract.
c) The dismissal must be attended in a procedurally manner.
According to van Jaarsweld and Van Eck cases of serious misconduct entitle an employer to dismiss an employee unless the employer cannot prove that there was justification for the dismissal of the employee. The following acts of misconduct are examples of cases which would justify the dismissal of an employee;
a) Gross dishonest
b) Wilful damage of the employer’s property.
c) Assault of the employer, a co-worker or a client of the employer
d) Gross in-subordination
e) Wilful endangering of the safety of others.
f) An employee’s conduct in respect of a subordinate co-employee/s giving rise to a demand by a trade union for his