Constructive Dismissal

Constructive Dismissal

Section 95(1)(c) ERA states that there is a dismissal when the employee resigns in circumstances in which he is entitled to terminate his contract without notice by reason of the employer’s conduct.  This is commonly referred to as a constructive dismissal.

Grounds for Constructive Dismissal

The employer’s conduct in such circumstances must fundamentally breach the contract - a breach is fundamental when it is so significant that it goes to the root of the contract and releases the employee from all further obligations under it. The employer is said to have ‘repudiated’ the contract.  The terms ‘repudiatory breach’ and ‘fundamental breach’ are used interchangeably and essentially refer to the same concept.

To prove constructive dismissal it must be established that:

• the employer committed a fundamental/repudiatory breach of contract;

• the employer’s breach caused the employee to resign; and

• the employee acted promptly and did not delay before resigning.

Resignation letter

It is important that the reasons for your re be articulated in the resignation letter that you send in. If there has been a significant violation of the contract, you may choose to quit your employment immediately rather than working out the remainder of your notice period.

When writing a resignation letter, it is critical to ensure that the fundamentals are covered properly. It is critical that you address your resignation letter to the appropriate individual, despite the fact that this may seem to be an apparent need.

It is possible that the safest course of action would be to send a copy of your letter or email to many persons. This will guarantee that it gets seen at the earliest opportunity and will not be left in an in-tray because the addressee is not there. You may wish to give your resignation letter to your immediate supervisor. It is recommended that you additionally copy in the Human Resources department of your workplace.

constructive dismissal Resignation letter

If your wondering how do i write a resignation letter for constructive dismissal? Have a look at the resignation letter template for constructive dismissal below. Make sure the letter clearly identifies the sender and includes the right date as well as the sender's address. If you are signing the letter, print your name beneath in case it is difficult to see your signature.

Alternatives to Constructive Dismissal

Where there is a serious breach by the employer, such as imposing a change in terms and conditions relating to pay/hours of work, it is important to consider all possible options for an employee.  Whilst the employee may have the right to resign and argue constructive dismissal, he/she would be left without employment (and therefore without pay).  Also, it is important to note that proving constructive dismissal is notoriously difficult.  Therefore, when discussing the possibility of resigning and arguing constructive dismissal, it is important to advise an employee to consider other options, including:

• ignoring the breach and continuing to work (i.e. do nothing);

• continuing to work, but under protest (e.g. by raising an internal grievance), and sue for damages; or

• continuing to work but refusing to comply with changes (e.g. where breach relates to imposed terms).