An employer may try to 'manage you out' by excluding you from meetings, stripping you of responsibilities, or suddenly applying poor performance reviews. South African employees should be aware of constructive dismissal and their rights in the workplace.
Imagine arriving at work ready for the week, only to find you have been excluded from important meetings, your core duties have been taken away, and your manager's tone has suddenly become cold. Even if you are not directly told you are being fired, there might be a feeling that the employer wants you to leave.
In South Africa, this gradual sidelining of an employee is often referred to as 'management out.' Sometimes employers may intentionally complicate working conditions hoping the employee will resign rather than go through formal disciplinary procedures, performance management, or redundancy.
South African labour law provides protection to employees in situations where the employer's behaviour makes continuing employment unbearable.
Warning Signs
Employers are unlikely to send an email about trying to push you out. Instead, an employee may encounter repeated behaviour that makes staying at work difficult. These signs may include:
- Isolation: Deliberate exclusion from crucial team discussions or subjecting you to humiliation or bullying in front of colleagues.
- Demotion: Unjustified demotion or transfer to a less prestigious position, possibly accompanied by threats of termination or other consequences for objecting.
Unjustified Disciplinary Action:
Sudden accusations of misconduct without providing a fair opportunity to respond.
Unfair Reviews:
Receiving consistently negative performance reviews that do not reflect your actual work or results.
The Constructive Dismissal Trap
When faced with such treatment, your first instinct might be to quit just to escape the situation. However, making a decision to resign too quickly can complicate subsequent claims.
Section 186(1)(e) of the South African Labour Relations Act defines dismissal as circumstances where 'an employee terminates the employment relationship with or without notice because the employer made the continuation of employment intolerable for the employee.' This is commonly known as constructive dismissal.
Proving a claim of constructive dismissal can be difficult before the Commission for Conciliation, Mediation and Arbitration (CCMA). The employee must first prove that a dismissal occurred under the law. Generally, this requires demonstrating that the employee terminated the employment relationship because the employer made further work intolerable.
Circumstances related to the dismissal, including whether the employee attempted to resolve the issue internally if it was reasonable and appropriate, can be relevant to the case. Therefore, resigning hastily without sufficient evidence can undermine future claims.
What Should Be Done?
If you feel you are being pushed out, avoid impulsive resignation. Instead, consider taking steps to document and address the situation.
Create a Paper Trail
Document relevant incidents. Keep records of dates and times, save emails, messages, and other correspondence that may indicate exclusion, harassment, or unfair treatment. Store records legally and avoid deleting confidential company information that you are not entitled to possess.
File a Formal Complaint
If appropriate, use your employer's internal complaint procedures to formally raise your concerns. Submit a written complaint to HR, management, or the relevant person in the organization, detailing the behaviour you deem unfair. This gives the employer an opportunity to resolve the issue and can serve as evidence of steps taken for internal dispute resolution if the dispute later moves to the CCMA or another forum.
Seek Expert Help
Navigating a hostile work environment can be stressful, and decisions made during a workplace dispute can have serious consequences. Membership in a service like Legal Leaders Insurance may provide employees with access to specialized consultation when resolving workplace disputes. Seeking advice before resigning can help an employee better understand available options and the potential consequences of each step.
Employees should not feel pressured to give up their workplace rights. Employers seeking to force employees out must comply with applicable South African labour legislation and follow fair procedures when required.