LLexiSA

Labour Law

Constructive Dismissal

Constructive dismissal occurs when an employee resigns because the employer made continued employment intolerable — for example through harassment, humiliation, unilateral changes to terms, or failure to address grievances. Section 186(1)(e) of the LRA treats such a resignation as a dismissal, but the employee bears the onus of proving intolerability.

Key facts

  • The employee must prove the employer made continued employment objectively intolerable — a high bar.
  • Resigning should generally be a last resort: raise a grievance first where possible.
  • The 30-day CCMA referral period runs from the date of resignation.
  • If proven, remedies mirror ordinary unfair dismissal (compensation up to 12 months).

The law that applies

  • Labour Relations Act 66 of 1995 — s 186(1)(e), s 191

Leading cases

Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC)

The test is whether the employer, without dismissing, made continued employment intolerable.

Murray v Minister of Defence [2008] ZASCA 44

The intolerability must be of the employer's making; the employee need not prove intent to force resignation.

Practical steps

  1. Document the intolerable conduct and your attempts to resolve it (grievances, emails).
  2. State your reasons clearly in your resignation letter.
  3. Refer to the CCMA within 30 days of resignation using Form 7.11.

Frequently asked questions

I resigned in anger — can I still claim constructive dismissal?

It is difficult. You must show the employer's conduct, viewed objectively, left you no reasonable alternative but to resign. A heat-of-the-moment resignation over a single incident rarely meets the test.

Should I resign with notice or immediately?

Resigning with notice does not destroy a constructive dismissal claim, but you should make the reasons for your resignation clear in writing at the time.

How does this apply to your situation?

Ask LexiSA. It will gather your facts, apply the law above, and give you a cited assessment of your position — free.

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This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney.