Constructive Dismissal in South Africa: When a Resignation Is Really a Dismissal

The Statutory Framework

Section 186(1)(e) of the LRA provides that “dismissal” includes a situation where an employee terminated a contract of employment, with or without notice, because the employer made continued employment intolerable for the employee.

Where a constructive dismissal is established, the termination is treated as a dismissal, and the forum must then determine whether that dismissal was unfair. The available remedies include reinstatement or compensation not exceeding twelve months’ remuneration. A dispute must be referred to the CCMA or the relevant bargaining council within thirty days of the date of dismissal.

The Requirements and the Onus

The onus rests on the employee to prove, on a balance of probabilities, three elements:

1. that the employee terminated the contract of employment;
2. that the reason for doing so was that continued employment had become intolerable; and
3. that the employer was responsible for creating that intolerable situation.

All three elements must be present. If the employee fails at the threshold stage of establishing a dismissal, the CCMA lacks jurisdiction to determine the dispute. The test is objective. In Pretoria Society for the Care of the Retarded v Loots, the Labour Appeal Court framed the enquiry as whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties, judged by the effect of its conduct as a whole.

Absence of Alternatives Is Not Required

In Strategic Liquor Services v Mvumbi NO and Others, the employer contended that no constructive dismissal could arise because the employee had a choice between resigning and submitting to poor-performance procedures. The Constitutional Court rejected that contention. It held that the test does not require that the employee have no choice but to resign. It requires only that the employer made continued employment intolerable. The decision also illustrates an evidentiary point. The employer had led no evidence before the CCMA, and the commissioner was accordingly entitled to accept the employee’s uncontested version.

The Meaning of “Intolerable”

Eastern Cape Tourism Board v CCMA and Others demonstrates the stringency with which the requirement is applied. The employee, a chief financial officer, resigned citing conflict with the chief executive officer and the human resources manager. The commissioner found that she had been constructively dismissed. On review, the Labour Court set the award aside, and several features of its reasoning are instructive.

First, the court emphasised that senior managers are expected to withstand a degree of conflict, power struggles and workplace politics, and that mere unhappiness does not suffice. Second, although the employee’s resignation letter described her working conditions as “intolerable”, the same letter offered to serve her notice period, which the court regarded as inconsistent with genuine intolerability. Third, the resignation followed a notice calling on her to make representations as to why she should not be suspended, and the court treated resignation in the face of pending disciplinary action as inimical to a claim of this kind. Fourth, the human resources manager whose conduct she complained of had left the employer’s service before she resigned, so that source of the alleged intolerability no longer existed. Finally, the court held that failure to invoke the internal grievance procedure, while not decisive, is an important consideration in assessing whether the employee in truth had no alternative to resignation.

Resignation as a Last Resort

The authorities consistently treat resignation as a measure of last resort. In Armaments Corporation of South Africa Ltd v Nowosenetz NO and Others, the Labour Court indicated that an aggrieved employee should lodge a grievance within a reasonable time, and that the complaint must be a genuine one rather than mere dissatisfaction with legitimate operational changes.

Recent Constitutional Court Authority

The Constitutional Court revisited the doctrine in 2026 in Maleka v Boyce N.O. and Others. The applicant, an information technology director, resigned following a change to his reporting line, although his title, remuneration and responsibilities were unchanged. The majority held that “intolerable” connotes conditions that are insufferable, rather than merely difficult or strained. It characterised his complaint as one of anticipated, rather than actual, intolerability, and it found that his failure to utilise internal grievance procedures weighed against him. A minority would have upheld the appeal. The decision confirms the high threshold, while also demonstrating that outcomes depend closely on the facts.

Practical Considerations

Employees contemplating resignation on this basis should recognise that resignation is not readily reversed and that the onus is a heavy one. Grievances should be recorded in writing and pursued through the employer’s procedures before any decision to resign is taken. A resignation tendered to avoid disciplinary action is unlikely to found a claim. The thirty-day referral period is strict, and legal advice should be obtained before, rather than after, the decision to resign.

Employers should address grievances promptly and substantively, since unresolved complaints are the usual foundation of these claims. Restructuring and changes to reporting lines should be implemented transparently and, where appropriate, following consultation. Where a claim is referred, the employer should lead evidence rather than rely on submissions alone, as Strategic Liquor illustrates.

Conclusion

Constructive dismissal is a legitimate but exacting remedy. Whether it is available depends on the particular facts, the employer’s conduct viewed as a whole, and the steps the employee took to resolve the difficulty before resigning. Our attorneys advise both employees and employers on these matters and welcome enquiries.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.