Constructive dismissal in South Africa refers to a situation where employees have no choice but to resign due to their employer’s conduct or the working conditions. In these circumstances, the resignation is treated as a dismissal under labour law. Section 186(1)(e) of the Labour Relations Act (LRA) recognises that resignation under these conditions may be deemed a dismissal.
The concept arises when conditions become intolerable for employees. This might stem from changes to their roles, unfair treatment, severe harassment, unsafe working conditions, unreasonable demands or workloads or other detrimental working circumstances. Common examples include drastic reductions in salary without consultation, demotions without valid cause, or persistent victimisation. If an employer’s behaviour effectively forces a resignation, the employee may approach the Commission for Conciliation, Mediation and Arbitration (CCMA) to seek redress.
Legal Framework and Key Principles
Foundation in the Labour Relations Act
The LRA sets out the conditions under which an employee can claim constructive dismissal. An employee has to prove that:
- They resigned;
- The employer’s conduct renders the continuation of the employment relationship as intolerable; and
- No reasonable alternative existed for the employee other than to end the employment relationship.
If these requirements are met, the resignation may be recognised as a dismissal. This empowers employees to pursue legal remedies, which can include compensation or reinstatement, depending on the nature of the dispute and the findings of a commissioner or judge.
The Importance of Exhausting Internal Remedies
In Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7, the Constitutional Court confirmed that employees must exhaust internal grievance procedures before resigning and claiming constructive dismissal. The Court held that resignation must be a measure of last resort, and that an employee who resigns based on anticipated — rather than actual — intolerability may fail to establish a constructive dismissal claim. This landmark judgment reinforces the principle that employees should take all reasonable steps to resolve workplace issues before resorting to resignation.
Burden of Proof and Evidentiary Requirements
Responsibility of the Employee
The onus in constructive dismissal cases falls on the employee to show that the working environment was intolerable and that they were constructively dismissed. This means presenting evidence of the conditions or incidents that drove them to resign. Emails, memos, performance reviews, or written complaints to management may be critical in illustrating how an employer’s conduct was intolerable. Employees will struggle to prove constructive dismissal if they resign without trying to raise a grievance or address the matters beforehand.
Employer’s Defence
Once an employee proves constructive dismissal, employers have the opportunity to present a defence. They might argue that adequate grievance procedures were in place and were not followed, or that the resignation was due to unrelated reasons and prove that the dismissal was fair. If the employer can show a fair process or a valid justification for its actions, the constructive dismissal claim may fail.
Role of the CCMA in Dispute Resolution
Early Conciliation and Mediation
Disputes arising from constructive dismissal are usually referred to the CCMA for conciliation. The CCMA attempts to facilitate a mutually agreeable settlement between the parties before the matter proceeds to arbitration. During conciliation, both parties can negotiate a settlement that may include monetary compensation or reinstatement if the relationship can still be salvaged.
Arbitration and Possible Outcomes
If conciliation fails, the CCMA proceeds to arbitration. A commissioner will review the evidence, listen to witness testimony, and decide on the merit of the claim. The test for constructive dismissal is an objective one, i.e. whether it is reasonable to conclude that the continued employment is intolerable for the employee. Outcomes vary: employees could receive compensation (including final pay entitlements) or an order for reinstatement. In other instances, a finding may be made that the resignation did not amount to a dismissal, leaving the employee with no remedy under the LRA.
Time Frames for Lodging a Dispute
Urgency of Filing
Employees who believe they have been constructively dismissed must act promptly. The LRA stipulates that unfair dismissal disputes must be referred to the CCMA within 30 days from the date of dismissal. Delays might require an application for condonation, where the applicant must show good cause for failing to refer the matter within this time frame.
Proposed Legislative Changes
The Labour Law Amendment Bill, 2025, published for public comment on 26 February 2026, proposes several changes relevant to dismissal disputes. The public comment period closed on 28 March 2026, and the Bill is now awaiting formal introduction to Parliament. Key proposals include a proposed increase to statutory minimum severance pay from one week to two weeks’ remuneration per completed year of service for operational requirements dismissals, the introduction of a threshold above which reinstatement and re-employment may not apply (unless the dismissal was automatically unfair), and a proposed exclusion of employees earning above ZAR 1.8 million per annum from reinstatement or re-employment remedies in ordinary unfair dismissal cases. The Bill also proposes expanded powers for the CCMA to publish its own Facilitation Rules. These proposed amendments are not yet in force and remain subject to parliamentary approval.
Steps to Avoid Constructive Dismissal
Open Communication
Employers can often avoid disputes by fostering an environment where open communication is encouraged. Encouraging employees to voice concerns about unfair treatment, bullying, or other workplace issues is crucial. By addressing complaints early, management can prevent escalation to a point where an employee feels compelled to resign.
Clear Grievance Processes
Formal grievance procedures allow employees to lodge complaints internally. Employers who respond to these grievances with transparency and fairness may mitigate claims of constructive dismissal. Comprehensive investigations and a commitment to resolving internal conflicts can show that the employer made reasonable efforts to address the employee’s concerns, and can be relied upon by an employer in defence to a constructive dismissal referral.
Consulting When Changes Are Imminent
Significant changes to an employee’s terms of employment should be communicated in advance. Consulting with affected employees, listening to their input, and providing reasons for the changes can reduce perceptions of unfairness. Consultation promotes a sense of collaboration and limits the risk of disputes.
Final Remarks on Constructive Dismissal in South Africa
Constructive dismissal can have serious consequences for employees and employers alike. Employees who believe they have been forced to resign should gather substantial evidence, follow the correct procedures, and act within the required time frames. Employers can reduce the likelihood of disputes by upholding fair labour practices, encouraging communication, and ensuring that complaints are taken seriously.
Seeking professional advice at an early stage is advisable if an employee feels cornered or if an employer is unsure about best practices for maintaining the work environment. Legal guidance can help clarify the steps needed to address workplace issues or construct a robust defence if a claim arises. Every dispute is unique, so thorough preparation and awareness of employee rights and employer obligations are vital.
It is also important to understand the Code of Good Practice for Dismissals (revised by Government Notice 3470, Government Gazette 53294, September 2025) and the disciplinary hearing procedures that apply in the workplace, as these directly affect how constructive dismissal claims are assessed.
Employers and employees are advised to seek our professional advice before acting on any matter that may affect the employment contract in order to avoid being faced with disputes of constructive dismissal.
Reviewed 24 March 2026 — Updated to include the Constitutional Court’s ruling in Maleka v Boyce (2026) on exhausting internal remedies, the Labour Law Amendment Bill 2025 proposals, and additional internal links. No changes to the underlying legal framework; the Wills Act and LRA provisions cited remain current.
Updated 14 April 2026 — Updated Labour Law Amendment Bill section: public comment period closed 28 March 2026; Bill now awaiting parliamentary introduction. Added proposed ZAR 1.8 million high-earner reinstatement exclusion detail.
Updated 14 April 2026 — Added reference to the revised Code of Good Practice on Dismissal (September 2025).
