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 66 of 1995 (LRA) recognises that resignation under these conditions may be deemed a dismissal. In the words of the Act, a dismissal includes the case where “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.
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; (2026) 47 ILJ 839 (CC); [2026] 6 BLLR 519 (CC), handed down on 24 February 2026, the Constitutional Court set out the test for constructive dismissal. The majority, per Seegobin AJ, confirmed three requirements: the employee terminated the contract of employment; continued employment had become intolerable; and it was the employer’s conduct that created that intolerability. The threshold for intolerability is a high one and the test is objective.
Two aspects of the judgment matter in practice. First, section 186(1)(e) does not extend to future or speculative circumstances that might at some later point become intolerable. Mr Maleka resigned over a change in reporting line that he anticipated would undermine his standing, while his title, salary, responsibilities and seat on the executive committee were all unchanged at the time he left. Because his case rested on anticipated rather than existing intolerability, it failed.
Second, and this is often reported too strongly, the Court did not lay down an absolute rule that an employee must always exhaust internal grievance procedures before resigning. What it held is that employees are ordinarily expected to use available internal procedures first, and that a failure to do so without a compelling reason weighs against a constructive dismissal claim. It is a significant factor, not a jurisdictional precondition. Madlanga ADCJ dissented, taking the view that Mr Maleka had been constructively dismissed and that pursuing a grievance would have been futile on the facts.
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. Section 191(1)(b)(i) of the LRA requires an unfair dismissal dispute to be referred within 30 days of the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or to uphold the dismissal. That second limb is easily overlooked and can preserve a referral that looks out of time on the face of it.
The referral goes to a bargaining council where the parties fall within that council’s registered scope, and to the CCMA only where no council has jurisdiction. Referring to the wrong forum wastes time that the 30-day clock does not give back. Where the deadline has passed, section 191(2) allows the council or the CCMA to permit a late referral if the employee shows good cause, but condonation is not a formality and is refused often enough to be worth avoiding.
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 an increase to statutory minimum severance pay from one week to two weeks’ remuneration per completed year of continuous service for operational requirements dismissals, with the higher rate to apply only to years of service completed after the amendment takes effect rather than retrospectively across an employee’s whole career. The Bill also proposes that employees earning above R1.8 million per annum, a figure to be adjusted annually for inflation, would not be entitled to reinstatement or re-employment as a remedy for unfair dismissal unless the dismissal was automatically unfair, leaving compensation, itself capped at a prescribed maximum, as the remedy for that group. Expanded powers for the CCMA to publish its own Facilitation Rules are also proposed. The Bill reaches beyond the LRA, proposing amendments to the Basic Conditions of Employment Act 75 of 1997, the Employment Equity Act 55 of 1998, the Unemployment Insurance Act 63 of 2001 and the National Minimum Wage Act 9 of 2018. None of these amendments are in force and all 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: Dismissal and the disciplinary hearing procedures that apply in the workplace, as these directly affect how constructive dismissal claims are assessed. The Code was published as General Notice 3470 of 2025 in Government Gazette 53294 on 4 September 2025 and took effect on that date of publication. It is not merely a revision: it repeals and replaces the old Code of Good Practice: Dismissal that stood as Schedule 8 to the LRA, together with the separate 1999 code on dismissals based on operational requirements, consolidating misconduct, incapacity and operational requirements into a single code.
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 – Added the Constitutional Court’s ruling in Maleka v Boyce on constructive dismissal and the exhaustion of internal grievance procedures, and the Labour Law Amendment Bill 2025 proposals.
Updated 14 April 2026 – Labour Law Amendment Bill: public comment period closed 28 March 2026 and the Bill now awaits parliamentary introduction. Added the proposed R1.8 million high-earner exclusion from reinstatement and re-employment, and a reference to the revised Code of Good Practice on Dismissal of September 2025.
Updated 22 September 2026 – Corrected the effect of Maleka v Boyce: the Constitutional Court did not make exhausting internal grievance procedures an absolute precondition, but held that employees are ordinarily expected to use them and that a failure to do so without compelling reason weighs against the claim. Added the full citation and the 24 February 2026 judgment date, the three-part test and the finding that section 186(1)(e) does not cover anticipated intolerability. Corrected the Code of Good Practice: Dismissal reference to General Notice 3470 of 2025, Government Gazette 53294 of 4 September 2025, and noted that it repeals and replaces Schedule 8 to the LRA. Added the section 191(1)(b)(i) alternative 30-day starting point, bargaining council jurisdiction, and further detail on the Labour Law Amendment Bill’s severance pay and compensation cap proposals.
