Constructive dismissal is where an employee resigns because the employer has made continued employment intolerable. It is recognised in section 186(1)(e) of the Labour Relations Act 66 of 1995, and the resignation is then treated as a dismissal by the employer.
It is also one of the hardest claims to win, because the employee carries the onus of proving it. This page sets out what must be established and what to do before resigning.
Legal Requirements at a Glance
What an employee must establish.
- That the employee terminated the employment contract — resigned, with or without notice
- That continued employment had become objectively intolerable, not merely unpleasant
- That the employer made it intolerable, by its conduct or by conduct it permitted
- That there was no reasonable alternative to resigning at that time
- That the resignation was caused by that intolerable situation
- That the employee raised the problem and gave the employer an opportunity to fix it, in most cases
- That the referral was made within 30 days of the resignation taking effect
- That the employee falls within the protection of the Labour Relations Act
Documents, Forms and Evidence Required
The onus is on the employee, which is the opposite of an ordinary dismissal dispute where the employer must prove fairness. This is why constructive dismissal claims fail more often than they succeed, and why the evidence matters so much.
Intolerable is judged objectively. The test is not whether you found it unbearable but whether a reasonable employee in your position would have found continued employment intolerable. A difficult manager, a disappointing performance review or a disagreement about duties will generally not meet it.
Situations that have been found to qualify include sustained harassment, sexual harassment, unlawful unilateral changes to terms and conditions, victimisation after raising a grievance, non-payment of wages, and threats or intimidation. What matters is the seriousness and persistence, not a single instance of rudeness.
You must generally have tried the internal remedies. Lodging a grievance, in writing, and giving the employer a fair chance to address it is close to essential. A resignation with no prior complaint is very hard to justify afterwards.
Resignation must be the last resort, not the first response. If there was a reasonable alternative — a grievance, a transfer, a referral to the CCMA on the underlying issue — and you did not take it, the claim is weakened.
Do not resign in anger. Once you resign you have given up your income and taken on the onus of proof. Getting advice before resigning is the single most valuable thing you can do.
Eligibility and Formal Requirements
What to gather before and after resigning.
- Your employment contract and any letters varying it
- The grievance you lodged, in writing, and the employer’s response or the absence of one
- A diary or written record of incidents, with dates, times, what was said and who was present
- Emails and messages evidencing the conduct complained of
- Payslips, showing unpaid wages or unlawful deductions where relevant
- Medical or psychological reports, where the situation affected your health
- Names and contact details of witnesses
- Your resignation letter, which should state the reason
- The employer’s disciplinary and grievance policies
Application, Certification or Registration Steps
Your resignation letter matters. State plainly that you are resigning because the employer’s conduct has made continued employment intolerable, and identify what that conduct was. A neutral resignation letter thanking the employer for the opportunity is used against employees constantly.
Refer the dispute to the CCMA within 30 days of the resignation taking effect, or to the relevant bargaining council where one covers your sector. This time limit is short and it is strictly applied. Late referrals require an application for condonation, which is not granted as a matter of course.
The CCMA process is free and you do not need a lawyer. Conciliation is attempted first, and if it fails the matter proceeds to arbitration or, in some cases, to the Labour Court.
Legal representation is limited at arbitration in certain dismissal disputes, which levels the field. A trade union official or a co-employee may represent you.
Remedies include compensation and, in principle, reinstatement, though reinstatement is rarely appropriate where the relationship has broken down to this point. Compensation for unfair dismissal is capped in the manner the Act provides.
Claim your UIF regardless. Resignation historically affected UIF claims, and the position has been the subject of litigation and legislative attention. Apply and let the Fund decide rather than assuming you are excluded — and if a claim fails because your employer never declared your months, that is the employer’s breach, not yours.
Fees, Processing and Validity
Referral to the CCMA costs nothing. There is no filing fee, and free assistance is available. Anyone charging you to refer a dispute is charging for something that is free.
The 30-day period runs from the date the resignation takes effect, not from the incident. Diarise it the day you resign.
Get advice before resigning, not after. Free advice is available from the CCMA itself, from a trade union if you are a member, from Legal Aid South Africa, from university law clinics and from community advice offices.
Consider the alternatives to resigning. An unfair labour practice referral, a grievance, a Department of Employment and Labour complaint about unpaid wages or unlawful deductions, or a harassment complaint under the applicable code may all address the problem while you keep your income.
Sexual harassment has its own code and its own remedies, and an employer that fails to act on a complaint is exposed under the Employment Equity Act 55 of 1998 as well. Do not treat it as an ordinary grievance.
Keep your own copies of everything and store them outside the employer’s systems. Access to work email and files usually ends the day you resign, and evidence you cannot reach is evidence you do not have.
Do not sign a settlement or a full and final release without understanding what you are giving up. Take it away, get advice, and do not sign under pressure in a meeting.
Frequently Asked Questions
Who has to prove constructive dismissal?
The employee. That is the reverse of an ordinary dismissal dispute, and it is why evidence — a written grievance, dated records, messages — matters so much.
Is a bad manager enough?
Generally no. The test is objective: whether a reasonable employee would have found continued employment intolerable. Unpleasantness, a poor review or a disagreement about duties will not usually meet it.
How long do I have to refer it?
30 days from the date the resignation takes effect, to the CCMA or the relevant bargaining council. Later referrals need condonation, which is not automatic.
Should I resign first and ask later?
No. Get advice before resigning. Once you resign you lose your income and carry the onus of proof. Advice from the CCMA, a union, Legal Aid or a law clinic is free.
Constructive dismissal is governed by section 186(1)(e) of the Labour Relations Act 66 of 1995 and is applied through CCMA and Labour Court decisions that develop over time. Confirm your position with the CCMA, a trade union or a legal adviser before resigning.