Before the introduction of the concept of constructive dismissal in the LRA, the old industrial courts relied on the strides made in this field by the English and American courts. Constructive dismissal is the fourth type of dismissal and it is instituted by the employee through his/her resignation, unlike the other three types of dismissals which is instituted by the employer. Section 186(e) of the LRA defines constructive dismissal as the termination a contract of employment with or without notice by the employee because the employer made continued employment intolerable for the employee. With a fundamental breach in the contract of employment employees have a choice to either base their claims on constructive dismissal in the LRA or repudiation of the contract in common law, depending on the circumstances. Landmark judgments like Jooste v Transnet and Pretoria Society for the Care of the Retarded v Loots set the tone for constructive dismissal law in South Africa. It introduced the concept of intolerability as well as looking at the employer‟s conduct as a whole and judging it reasonable. The test for constructive dismissal throughout the evolution of case law in South Africa has not changed. Constructive Dismissal under the common law is also discussed in depth by looking at the landmark judgment of Murray v Minister of Defence. Sexual Harassment in the workplace is of a growing concern. If continued sexual harassment makes continued employment intolerable, the employee subjected to the harassment has the option of resigning and approaching the CCMA or bargaining councils, and claim that they have been constructively dismissed. Cases such as Payten v Premier Chemicals and Gerber v Algorax (Pty) Ltd really shows us how difficult it is to proof constructive dismissal as a result of sexual harassment because in most instances there won‟t be witnesses and it would be a case of he said, she said. These cases also show us that it can be proven based on a balance of probabilities. Grogan states that in dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed and on the employer to show that the dismissal was fair. Section 192 of the LRA places another burden on the employee that requires him to not only prove the existence of a dismissal, but also that the conduct of the employer was intolerable. Unlike normal dismissal cases, commissioners generally award compensation as a remedy for constructive dismissal. A claim by an employee for reinstatement would be contradicting a claim that the employment relationship became intolerable and an award for reinstatement would be very inappropriate in a case of constructive dismissal. In short, unlike a normal dismissal, a constructive dismissal is a termination of the employment contract by the employee rather than the employer‟s own immediate act.

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LL.M. (Labour Law) / Please refer to full text to view abstract

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013

The subject of the present treatise concerns termination of employment contracts that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. Every employee has the right not to be dismissed unfairly. The Labour Relations Act, 1995 recognises three grounds on which termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. However, fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. The Incapacity Code and Procedure in respect of Ill-health or Injury applicable to Educators is contained in Schedule 1 to the Employment of Educators Act, 1998. In addition there are collective agreements which are the products of collective bargaining that are also applicable to all categories of employees employed in the public education sector. Notably, PSCBC Resolution 7 of 2000 forms part of the subject of our discussion. The Department of Education determined the use of independent Health-risk Managers to provide advice on the management of incapacity leave and ill-health retirement, thereby ensuring objective and impartial evaluation which are largely acceptable to employees and their labour representatives. This is the Policy and Procedure on Incapacity Leave and Ill-Health Retirement in the Public Service. The appointed Health-risk Managers make recommendations to the Head of Department who thereafter implement the recommendations and deal with issues of a case to absolute finality. More importantly, the Policy and Procedure for incapacity leave and ill-health retirement in the Public Service is issued in terms of legislation, that is, section 3(3) of the Public Service Act, 1994 and therefore is not a collective agreement. Under the circumstances, it is not always easy to determine a real dispute and an issue in dispute. Because of this uncertainty arbitrators often found that bargaining councils have no jurisdiction to entertain these disputes, while on the other hand some arbitrators opined that bargaining councils do have jurisdiction In this treatise the general principles of the employment contract, the legislative framework applicable in the public education sector in determining an application for temporary incapacity leave and ill-health retirement and procedural and substantive issues in the termination of employment contract due to ill-health are considered and explained. The legal questions around the issue of discretion exercised by the Head of Department in granting or declining applications for ill-health are also examined. The primary aim of the treatise is to provide a clear exposition of the rather complicated law relating to incapacity due to ill-health and injury in public education.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012

M.Com. (Human Resource Management) / Studies clearly show that workers experience trauma when organizations rationalise. These traumatic experiences are found to be primarily due to the uncertainty of what will happen to workers and the impact rationalisation could have on their job security. This has led to the assumption that rationalisation is inevitably traumatic. This study is aimed at dispelling this assumption as a myth. The view is taken that human and organizational behavior is complex, in that a variety of interactions between management and workers is not only possible, but does in fact occur in organizations today. This study considers various approaches organizations follow in dealing with workers during a rationalisation program. This study also investigates the experiences of workers who have actually lost their jobs. The results indicate beyond doubt that the experiences of trauma associated with rationalisation programmes are strongly related to the approaches adopted by management during such programmeso Worker trauma is therefore not a condition of rationalisation, but rather the result of a particular approach followed by management. The results of this study could have a profound effect on how organizations approach rationalisation. The benefits of a reduction in industrial and legal action due the approach adopted by management during rationalisation, is obvious. What is less obvious, but possibly more important however, is the level of loyalty and work performance of those workers remaining in the service of the organization. Studies have demonstrated the devastating impact of an unsatisfactory approach followed by management during rationalisation, on the work performance and loyalty towards the company of remaining workers. In order to succeed or survive, organizations must continually adjust to an everchanging environment. This would no doubt include the need for an effective rationalisation program...

Procedural justice is applied to layoffs to study the effects of layoffs on survivors. Procedural norms, developed as components of procedural justice, are applied to develop two different layoff procedures, merit and random. The hypotheses come from this application as moderated by the individual's self-perception. Low performers prefer a procedural equality layoff, while high performers demonstrate no clear preference for either layoff procedure. When given the opportunity to choose a layoff procedure, the subjects having control over the layoff procedure to be used were no more satisfied with the process than those who had no control. Performance equity (merit) layoff. Subjects in this condition decreased performance, while the subjects in the other layoff conditions maintained performance levels.

Dissertation submitted to the Faculty of Arts, University of the Witwatersrand, Johannesburg, in partial fulfilment for the degree of Master of Arts (Industrial Psychology) Johannesburg 1995 / The present research investigates the experience of involuntary job loss in a sample of white-collar workers. In addition, their perceptions of', and attitudes towards a preventive intervention, namely, outplacement, is explored. A review of the current literature on job loss and secondary formal interventions is discussed, which provides the basis for the present study. Findings support previous research, in addition to raising certain issues and providing suggestions which result in an expansion of present knowledge with regard to Outplacement. / MT2017

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2014 / Constructive dismissal comes into the equation when an employer behaves in such a manner that eventually and ultimately leads to the employee, being the receiving party, in the employment relationship, to terminate the employment contract. This termination must be the direct result of the conduct of the employer that irreparably frustrated the relationship and made it impossible for the employee to remain in the service of the employer in question. The law of constructive dismissal requires a balance between the competing interests of employees and employers. The employee is the one who makes the claim and determines whether to accept the changes made to his position or to resign and seek damages for wrongful dismissal. A factor which creates further uncertainty is that the employee also controls when to make the claim. Although the employee has greater control over constructive dismissal claims, an employer can take steps to limit the risk of an employee making a claim of constructive dismissal.