Constructive Dismissal in South Africa

Constructive dismissal happens when an employee resigns, but the resignation is really forced by the employer’s conduct. Section 186(1)(e) of the Labour Relations Act 66 of 1995 defines dismissal to include a situation where an employee ends the employment because the employer made continued employment intolerable.

What you must prove

The employee bears the onus of proving constructive dismissal. Three elements must usually be shown: that the employee resigned; that the working conditions were objectively intolerable; and that the employer was responsible for creating those conditions. The test is objective — it is not enough that the employee simply felt unhappy.

Examples of intolerable conduct

• Persistent bullying, harassment or humiliation by a manager.
• Unilateral and significant reduction of pay or demotion without cause.
• Failure to act on serious grievances such as sexual harassment.
• Forcing an employee to commit unlawful acts.

Resignation as a last resort

Courts expect an employee to have explored reasonable alternatives before resigning — such as lodging a formal grievance — unless doing so would clearly have been pointless. Resigning too hastily can weaken a claim, because the employer may argue the situation could have been resolved internally.

Referring a dispute

A claim of constructive dismissal is referred to the CCMA (or the relevant bargaining council) as an unfair dismissal dispute, generally within 30 days of the resignation. If conciliation fails, the matter proceeds to arbitration, where the employee must prove the dismissal and the employer must show it was fair.

Possible remedies

If constructive dismissal is proven and found to be unfair, remedies include reinstatement (less common in these cases, given the breakdown in the relationship) or compensation of up to 12 months’ remuneration. Because these cases turn on detailed evidence of the employer’s conduct, keeping records of incidents, emails and grievances is essential.

Constructive dismissal is one of the harder claims to win because the burden rests on the employee. Sound legal advice before resigning can help you preserve your rights and build the strongest possible case.