Sometimes a job becomes so unbearable that resigning feels like your only way out. Your employer cuts your pay or treats you so unfairly that you hand in your notice. On paper, you quit. But the law may see it differently.
This is constructive dismissal. When an employer makes conditions intolerable and leaves you little choice but to resign, your resignation can be treated as a dismissal, which means you may be able to claim.
What Constructive Dismissal Means
Most dismissals happen when an employer ends your employment. Constructive dismissal works the other way around. You resign, but only because your employer has made your working life so difficult that staying is no longer reasonable.
The Labour Relations Act covers this in Section 186(1)(e). In plain terms, it says that if you end your contract because your employer made continued employment intolerable, the law treats it as a dismissal rather than a simple resignation. Like other unfair dismissal claims, that gives you the right to take the matter further.
The important word here is “intolerable.” That word is deliberately strict. A job you dislike or a boss you struggle to get along with will not be enough on its own. The conditions have to be bad enough that a reasonable person in your position could not be expected to carry on working.
What You Have to Prove
In a constructive dismissal claim, you are the one who has to prove it. If you resign and then go to the CCMA, you have to show that your situation meets three points, on a balance of probabilities:
- You ended the employment, usually by resigning
- Staying had become intolerable
- It was your employer’s conduct that made it that way, not an unrelated reason
The CCMA also applies one more test. The test is objective, which means it does not rest on how the situation felt to you alone. What counts is the actual conditions you faced.
Examples That Usually Count, and Ones That Usually Don’t
Every case is judged on its own facts. No list can cover them all. Past CCMA rulings still give a good idea of what tends to succeed.
Situations that have supported a claim include:
- An employer cutting your pay or changing your role without agreement
- Ongoing bullying or public humiliation
- Sexual harassment that the employer failed to stop after it was reported
- Being pressured or threatened into resigning
Situations that usually do not succeed include:
- Unhappiness with a manager’s style or a personality clash
- Being passed over for a promotion or refused a raise
- Being reprimanded fairly for poor performance
- Resigning to avoid a disciplinary hearing you were facing
Genuine claims tend to involve conduct that breaks the trust between you and your employer. Everyday frustrations at work, even genuine ones, are usually not enough to succeed.
Try to Sort It Out First
One step can strengthen a constructive dismissal claim, and many employees skip it. Before you resign, raise the problem formally with your employer.
The CCMA expects you to give your employer a fair chance to fix the situation. That usually means lodging a written grievance or putting your concerns in an email you can refer back to later. If you resign without doing this, your employer can argue that you had options you never used, which weakens your case.
There is an exception. Where the conduct is extreme, such as assault or sexual harassment, the CCMA accepts that staying long enough to follow a grievance process may not be reasonable. Outside of those situations, showing that you tried to resolve the issue first will strengthen your position.
Evidence You Will Need
A constructive dismissal claim depends on what you can show. As the person bringing the claim, a clear record gives you a better chance at the CCMA.
Useful evidence includes:
- Emails or messages that show how you were treated
- Your written grievance and any reply from your employer
- Payslips or contracts that show pay cuts or changes to your role
- Notes of incidents, with dates and what was said
- Names of colleagues who saw what happened and could support your account
Start keeping these records early, while the problems are still happening. You usually lose access to work email and systems the day you leave, so gather what you can while you are still employed.
How the CCMA Handles a Constructive Dismissal Dispute
If you decide to take your claim further, it helps to know what the steps look like. The process at the CCMA usually runs as follows:
- Refer the dispute within 30 days. You have 30 days from the date you resigned to lodge your claim, so try to act while everything is still fresh. If some time has already passed, you can apply for condonation, where you ask the CCMA to accept a late referral and explain the reason for the delay.
- Conciliation. This is an informal meeting where a commissioner helps you and your employer discuss the dispute and look for an agreement. Many cases are resolved at this stage.
- Arbitration. If conciliation does not settle things, a commissioner hears both sides and makes a binding decision based on the evidence. Should your claim succeed, the CCMA can award compensation of up to 12 months’ pay, or reinstatement if you would prefer to return to your job.
One more useful point. Constructive dismissal is treated as a dismissal rather than a resignation, so a successful claim can allow you to apply for UIF, which would not normally be possible after resigning.
When to Speak to a Labour Attorney
Constructive dismissal is one of the harder claims to prove. The test is strict, and your employer will likely argue that you simply chose to resign. Good legal advice early often improves your chances.
A labour attorney can look at your situation honestly and tell you whether you have a case before you resign, which is often the most important moment to get advice. They can help you build your record and represent you through conciliation and arbitration.
Get Help From SB Lawyers
At SB Lawyers, our labour team advises employees across Pretoria and Nelspruit on dismissal disputes. If your working conditions have become intolerable and you are thinking about resigning, speak to us first. Contact SB Lawyers today to discuss your situation and understand your options.