Forced to Resign? Understanding Constructive Dismissal

Resigning from your job is typically a voluntary decision. Perhaps you’ve received a better offer, are pursuing a career change, or simply need a break. But what happens when you resign not out of choice, but because your employer has made staying impossible?

In South African labour law, this situation is known as constructive dismissal.

Constructive dismissal is one of the most misunderstood legal concepts — and unfortunately, one of the most difficult to prove at the Commission for Conciliation, Mediation and Arbitration (CCMA). If you feel you're being forced out, it's critical to understand exactly how the process works before submitting your resignation.

What is constructive dismissal?

Defined in Section 186(1)(e) of the Labour Relations Act (LRA), constructive dismissal occurs when "an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee."

The burden of proof

In a standard unfair dismissal case, the employer carries the burden of proving that the dismissal was fair. In a constructive dismissal case, however, the tables turn. Because you are the one who resigned, you must prove that the resignation amounted to a dismissal.

To succeed at the CCMA, you must prove that:

• You terminated the contract (i.e., you resigned).

• Continued employment had become objectively intolerable.

• You attempted to resolve the issue internally.

• Resignation was a last resort.

The intolerability test

The CCMA and Labour Courts apply a high threshold for what qualifies as intolerable. Merely being unhappy at work or experiencing normal workplace conflict usually does not suffice. The courts expect employees to endure a certain degree of workplace difficulty.

However, certain actions by an employer may render continued employment intolerable. These include:

• Harassment that is ignored or condoned by the employer

• Physical assault or threats of violence

• Unjustified non-payment of salary

• Verbal abuse or humiliation in the workplace

Internal remedies: The golden rule

The most important rule in constructive dismissal claims: do not resign without attempting to resolve the issue first.

You must follow your employer’s internal grievance procedures. If you're facing bullying, underpayment, or other unfair treatment, you need to lodge a formal complaint and allow the employer an opportunity to rectify the issue.

Failing to follow internal processes could seriously damage your case. The CCMA will likely argue that you had a reasonable alternative and that resignation was premature.

Building a strong case

Because the burden of proof lies with you, anecdotal evidence alone will not suffice. You need clear, documented evidence that your working conditions were intolerable.

• Keep a detailed record of each incident — include dates, times, witnesses, and exact descriptions.

• Follow up any threatening conversations with a summary email to the individual involved.

• Retain copies of all relevant correspondence (emails, WhatsApp messages, grievance letters) and performance records. Do not store this on your work computer or email account.

• If your health is affected, consult a medical professional. Medical certificates and psychological reports that link your condition to your workplace can be compelling evidence.

What to do if you must resign

If every avenue has been exhausted and resignation is unavoidable:

1. State clearly in your resignation letter that you are resigning due to intolerable working conditions, and list the specific reasons. Do not cite vague reasons such as “personal circumstances” or “career progression” — these may be used against you.

2. Refer your constructive dismissal dispute to the CCMA within 30 days of your resignation.

Constructive dismissal is a complex legal issue. Resigning in the heat of the moment can cost you your case — and your rights. Before taking that step, consult a labour law expert and ensure you’ve pursued every possible solution internally.

** Aslam Moolla is the founder and director of Legal Leaders and co-founder of Legal Leaders Insurance. He is a passionate labour lawyer with over 14 years of experience. Moolla and the Legal Leaders have become a prominent voice for workplace fairness and a commitment to ensuring every South African knows their rights and how to defend them.

***The views expressed here do not necessarily represent those of Independent Media or IOL.

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