UNDERSTANDING CONSTRUCTIVE DISMISSAL IN SA

Article by:  Randburg Attorney: BIANCA VOS

1. Overview

In the realm of South African labour law, not every resignation is as voluntary as it seems. Some employees are effectively pushed out of their jobs due to the actions, or inactions, of their employers.

When an employee resigns because their working conditions have become unbearable, the law may regard it as a constructive dismissal, even if no formal termination took place.

Constructive dismissal is a serious matter, and proving it requires more than just feeling mistreated or undervalued. The legal threshold is high, and employees must understand what the law requires to establish such a claim.

2. Statutory Basis

The concept of constructive dismissal is entrenched in South Africa’s Labour Relations Act 66 of 1995 (“LRA”). In particular, section 186(1)(e) defines a dismissal to include:

“an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

The key issue is intolerability, circumstances so severe that the employee sees no reasonable alternative but to resign.

3. What the Employee Must Prove

Unlike standard dismissal claims, the onus is on the employee to demonstrate that the resignation was not truly voluntary. The employee must establish:

• That an employment contract was still in force at the time of resignation;
• That the employer created an environment that was intolerable;
• That a reasonable person in the same position would also have found the situation unbearable;
• That resignation was the last reasonable option;
• That there was a direct link between the employer’s conduct and the resignation.

Failure to meet these elements can derail a claim before it even begins.

4. Clarifying the Courts’ Approach

Courts and tribunals have repeatedly cautioned that constructive dismissal is not a remedy for unhappiness at work. For example:

• In MEC for Health, Eastern Cape v Odendaal (2009) 30 ILJ 2093 (LC), the court held that an employment relationship must still exist when the resignation occurs, if the contract had already ended, no dismissal can arise.
• In Solid Doors v Commissioner Theron (2004) 25 ILJ 2337 (LAC), it was held that offensive language by a manager, while unprofessional, did not meet the threshold of intolerable working conditions.
• In Western Cape Education Department v GPSSBC (2013) 34 ILJ 2960 (LC), the court ruled that reinstatement following constructive dismissal will only be granted if the conditions that led to the resignation have been resolved.

5. Common Scenarios That May Justify Constructive Dismissal

The following are examples of employer conduct that have been found to justify claims of constructive dismissal:

• Unlawful deductions from salary or failure to pay agreed wages
  (Westcor SA v Mey (2023))
• Harassment or bullying that is ignored by management
  (Ntsabo v Real Security (2003))
• Failure to act on sexual harassment complaints or psychological distress
  (National Health Laboratory Service v Yona (2015))
• Offering alternative employment at a significantly lower grade or pay
  (Mhlambi v CCMA (2006))
• Physical assault or humiliation at the workplace
  (Le Monde Luggage v Dunn (2007))

6. Situations That Do Not Amount to Constructive Dismissal

Some cases show where the courts found no constructive dismissal despite the employee’s resignation:

• Resigning to avoid disciplinary action or due to fear of dismissal
  (Shoprite Checkers v JL (2022))
• Resigning during a grievance process without seeing it through
  (HC Heat Exchangers v Araujo (2020))
• General dissatisfaction or workplace conflict
  (Jordaan v CCMA (2010))

In these examples, the courts have emphasized that resignation must be a last resort, not a way to bypass internal remedies or pre-empt disciplinary consequences.

7. Legal Principles and Practical Considerations

The legal standard does not require the employer to have formally breached the contract. What matters is whether the employer’s conduct, or failure to act, destroyed the trust relationship and made continued employment impossible.
Importantly:

• There must be fault on the part of the employer.
• Delays in resigning after the intolerable conduct can weaken a claim.
• Employees are expected to first explore avenues such as internal grievance procedures unless it is clear that doing so would be futile.

8. Final Thoughts

Constructive dismissal is not an “easy out.” South African courts require solid evidence that the employee was left with no reasonable alternative but to resign. It is a legal remedy designed for extreme situations, where the workplace has become toxic, abusive, or fundamentally unjust.

Before taking this route, employees are urged to:

• Keep a detailed record of incidents;
• Lodge grievances where appropriate;
• Seek legal advice.

For more information, please visit our website www.gebersohn.co.za or give us a call on 079 771-9759