Resigning usually means that an employee has chosen to leave. Constructive dismissal concerns a different situation: the employee ends the employment relationship because the employer has made continued employment intolerable.
The distinction matters. An employee may have sound personal reasons for leaving a difficult workplace without necessarily having a successful constructive-dismissal claim.
Recent South African judgments have brought renewed attention to the evidence needed, the role of grievance procedures and the difference between an unpleasant working relationship and one that has become legally intolerable.
1. A resignation can qualify as a dismissal
Section 186(1)(e) of the Labour Relations Act recognises termination by an employee, with or without notice, because the employer made continued employment intolerable. The employee must establish the resignation, the intolerability of continued employment and the employer’s responsibility for it.
Simply writing “constructive dismissal” in a resignation letter does not establish those requirements.
The practical questions are more demanding: What happened? How did it affect continued employment? Why was the employer responsible? And did that situation cause the employee to resign?
A disagreement over management style, disappointment about promotion or frustration with a decision may explain unhappiness. Further evidence is needed to show that continued employment crossed the legal threshold.
2. What exactly became intolerable?
A tribunal needs a description of the conduct rather than a label for the workplace.
Instead of saying that management was “toxic”, identify particular incidents: what was said or done, when it happened, who was involved and how the employer responded.
Possible concerns might include repeated humiliation, harassment, threats, serious interference with an employee’s work or persistent failures to pay remuneration. Each allegation needs assessment in its context; no list automatically determines the outcome.
The assessment is objective
In Maleka v Boyce N.O. and Others, decided on 24 February 2026, the Constitutional Court majority reaffirmed that intolerability is assessed objectively and that the threshold is high. The employee’s dissatisfaction with a changed reporting line did not establish constructive dismissal on the facts.
An employee’s distress deserves attention, but the tribunal must examine the circumstances supporting the allegation.
For example, “My manager undermined me” leaves important questions unanswered. A dated account of instructions being reversed, responsibilities being removed and public remarks being made allows the conduct to be examined properly.
3. Was the employer responsible for the situation?
Constructive dismissal requires a connection between the intolerable employment situation and the employer. It is insufficient to show only that work had become unbearable for the employee.
Record who created the problem and what the employer knew.
If the complaint concerns a colleague, explain whether it was reported, to whom and what followed. If it concerns a manager, identify the manager’s conduct and any steps taken by others in the organisation.
These details help distinguish the original incident from the employer’s response to it.
A useful timeline might show that a complaint was submitted, supporting information was requested, further incidents occurred and the promised investigation never took place. Another timeline might show that the employer intervened promptly and offered practical protection. Those are materially different situations.
4. Did the employee use a reasonable route to resolve the problem?
Grievance procedures receive close attention because they may provide a workable way to address the alleged conditions before employment ends.
In Maleka, the majority emphasised the employee’s failure to explore suitable alternative remedies. The Court’s official summary records that the alleged intolerability was anticipated rather than established when he resigned.
An employee should therefore be cautious about assuming that a complaint will fail simply because it concerns a senior manager.
An available procedure and a functioning procedure are different
In Wesbank v CCMA and Others, the Labour Court considered an increasingly oppressive working relationship in which the grievance procedure had been invoked but was effectively inoperative. The absence of a viable mechanism for resolving the problems formed part of the finding of constructive dismissal.
The practical questions include:
- Was there a grievance procedure?
- Did the employee know about it and use it?
- What response followed?
- Were proposed solutions realistic?
- If the employee did not use the procedure, what explains that decision?
Keep the grievance, acknowledgements, responses and follow-up correspondence. If there was a serious reason why an internal route could not safely or usefully address the problem, record the supporting facts.
5. Was resignation premature?
An employer’s response can materially affect the assessment.
In Royale Energy v CCMA and Others, decided on 25 May 2026, the Labour Appeal Court found no constructive dismissal where the employer had initiated a grievance process, appointed an investigator and proposed interim reporting arrangements, but the employee rejected the proposals and resigned before the process concluded.
That does not make every investigation adequate or every proposed arrangement acceptable. It does mean that the actual response needs careful consideration.
Explain why an offered solution would or would not address the problem. “I did not trust management” is less useful than identifying a specific conflict of interest, an unaddressed threat or a proposed arrangement that left the complained-of conduct unchanged.
“No choice” needs careful wording
The Constitutional Court has previously explained that the statutory test does not require proof that the employee had literally no choice but to resign. The central question is whether the employer made continued employment intolerable. Reasonable alternatives remain relevant to that assessment.
Employees should obtain advice on the options available in their circumstances before treating resignation as the necessary next step.
6. Why did the employee resign when they did?
A clear chronology helps explain the relationship between the workplace conduct and the decision to leave.
Record the significant incidents, complaints, responses and resignation date. Explain what changed at the point of resignation.
Someone who remained employed for months may have been trying to resolve the problem or depending on the income while conditions deteriorated. Someone who resigned immediately may have experienced a serious incident, or may have acted before a reasonable response was possible. The chronology needs explanation.
If another job was involved, be accurate about when it was offered and accepted. Do not omit an inconvenient fact and leave the tribunal to discover it through the employer’s evidence.
The resignation letter should match the facts
Use calm, specific language.
Identify the conduct, the steps taken to address it and why the situation remained unresolved. Avoid exaggerated accusations or legal phrases copied from an unrelated example.
Keep a copy of the letter and proof of delivery. Read any proposed separation agreement carefully, particularly where it contains a settlement or waiver of claims.
7. Evidence should explain the whole story
Useful records may include:
- The employment contract and relevant workplace policies.
- Emails and complete message exchanges.
- Written grievances and responses.
- Notes of meetings and significant incidents.
- Payslips or records of disputed remuneration.
- Relevant medical information.
- The resignation letter and subsequent correspondence.
- Names of witnesses with direct knowledge.
Organise the records by date and connect them to the allegations.
Medical information may help explain the effect of events on an employee. It should be considered alongside evidence of what happened at work, rather than expected to establish the entire case.
Preserve original records where possible. A complete conversation is generally easier to understand than isolated screenshots without dates or context.
8. The employee carries the initial burden
The employee must establish that a dismissal occurred despite having resigned. Once dismissal is established, the employer bears the burden of proving fairness. If constructive dismissal is not established, the CCMA cannot determine an unfair-dismissal claim on that basis.
This is why preparation should begin before resignation wherever possible.
Write down the essential account: the employer’s conduct, why continued employment became intolerable, the attempts to resolve the problem and why the employee ultimately left.
Check whether the documents support that account. Identify gaps and obtain advice about their significance.
9. Referral deadlines still apply
A constructive-dismissal dispute must ordinarily be referred within 30 days of termination of employment, using LRA Form 7.11. The CCMA or relevant bargaining council must have jurisdiction. A late referral requires condonation, which is not automatic.
Confirm the termination date, particularly where notice was given, and obtain guidance promptly if the calculation is uncertain.
Continuing correspondence with the employer should not become a reason to postpone checking the deadline.
Keep the referral, proof of service and case number. After conciliation, confirm the next procedural step rather than assuming the case will proceed automatically.
10. Employers should respond while the relationship can still be repaired
A constructive-dismissal dispute may expose problems that were raised well before resignation.
Employers should acknowledge complaints, investigate fairly and communicate the steps being taken. Where a complaint concerns a manager, consider how the process will remain credible and sufficiently independent.
Practical measures may include addressing abusive conduct, clarifying responsibilities, correcting payment problems or introducing appropriate interim arrangements.
An employee needs to understand what is happening and when to expect a response. A policy that exists only on paper offers little reassurance when the complaint remains unanswered.
A difficult workplace requires a careful decision
Constructive dismissal protects employees whose employers make continued employment intolerable. Establishing it requires a clear account of the conduct, the employer’s responsibility and the reason employment ended.
Before resigning, preserve the evidence, consider reasonable ways to address the problem and obtain advice where possible. After employment ends, check the referral deadline promptly.
For employers, the opportunity to prevent the dispute often begins with the first complaint. Taking that complaint seriously may help repair the working relationship before resignation becomes part of the conversation.
