What is constructive dismissal?

Constructive dismissal is when you resign because your employer made your working life intolerable. The Labour Relations Act 66 of 1995 (LRA) treats that resignation as a dismissal, so you can refer an unfair dismissal dispute even though you were the one who left.

It is also one of the hardest claims to win. In an ordinary dismissal the employer must prove the dismissal was fair. In a constructive dismissal you must first prove there was a dismissal at all, which means proving that you did not simply choose to leave.

What you have to prove

A commissioner will generally look for three things.

1. You resigned. There must be an actual ending of the employment by you.
2. Continued employment had become intolerable. Not unpleasant, not unfair, not disappointing. Objectively intolerable, judged by what a reasonable person would find unbearable rather than by how strongly you felt.
3. The employer was responsible for making it intolerable. The conduct must come from the employer or from someone the employer is answerable for, and the employer must have failed to fix it.

There is a fourth, practical requirement that decides most cases. You must show that resigning was the only reasonable option left. That means you normally have to show you tried to resolve the problem while still employed.

What usually counts

Situations that commissioners have accepted as intolerable include:

• Sustained harassment, including sexual harassment, that the employer knew about and did not stop.
• Bullying or humiliation by a manager, over time and reported.
• Unilateral cuts to pay, or a significant demotion imposed without agreement.
• Threats, or being told to resign or be dismissed.
• Being forced to do something unlawful.
• A workplace that is genuinely unsafe, where safety complaints under the Occupational Health and Safety Act 85 of 1993 were ignored.
• Withholding pay repeatedly, or refusing to pay what is due.

What usually does not count

• A single argument with a manager or a colleague.
• An unfair warning, or a disciplinary process you disagree with. The remedy there is an appeal or an unfair labour practice referral, not resignation.
• A transfer or a change in duties that is within the employer's rights and does not amount to a demotion.
• Being unhappy, bored, or overlooked for promotion.
• Resigning to avoid a disciplinary hearing. This one is common and it usually fails.
• A generally difficult working environment where you never once complained.

Why you should not resign first

This is the most important part of the guide. Resigning is the step that ends your options. Before you do it:

1. Raise a grievance in writing. Use your employer's grievance procedure if there is one. Say what is happening, name the conduct, and say what you want done about it. Keep a copy and proof it was sent.
2. Give the employer a chance to fix it. A commissioner will ask what the employer did after you complained. If you never told them, that question ends your case.
3. Escalate. If your manager is the problem, go to HR or a director. If HR is the problem, go higher.
4. Keep records. Dates, times, what was said, who was present. Save emails and messages. Get a doctor's note if it has affected your health.
5. Consider the alternatives. An unfair labour practice referral covers unfair suspension, demotion and unfair conduct relating to promotion, training and benefits, and must be referred within 90 days. Unpaid wages, notice, leave or severance can go to the Department of Employment and Labour. Discrimination is dealt with under the Employment Equity Act 55 of 1998. None of those require you to leave your job.
6. Get advice before you resign, not the week after.

If you do resign, be clear in the letter that you are resigning because of the specific conduct and that you regard yourself as constructively dismissed. A neutral "thank you for the opportunity" letter is used against people at arbitration all the time.

The process if you do claim

Refer an unfair dismissal dispute to the CCMA, or to your bargaining council if one covers your sector, within 30 days of the resignation taking effect. It is free. Phone 0861 16 16 16. Our guide on how to refer an unfair dismissal to the CCMA explains the form and the service requirements.

Conciliation comes first. If it does not settle, the matter goes to arbitration, where you give evidence and are cross examined about why you left. Expect to be asked, in detail, what you did to resolve the problem before resigning.

A late referral needs condonation, which means asking the CCMA to accept it and explaining the delay.

What you can get

If the claim succeeds, the remedies are the same as for any unfair dismissal: reinstatement, re employment, or compensation. Reinstatement is rare in constructive dismissal cases, for obvious reasons, so compensation is the usual outcome. It is capped at 12 months' remuneration for an ordinary unfair dismissal, and 24 months where the dismissal is automatically unfair, for example where the reason relates to pregnancy, union activity or a protected disclosure.

You will not usually get notice pay from the employer, because you resigned. Your accrued annual leave must still be paid out. See Do I get paid for unused leave when I leave a job?.

Because you resigned, ordinary UIF unemployment benefits are usually not available while the claim is pending. That is a practical reason to think hard before leaving without another job.

Be honest with yourself about the odds

Constructive dismissal claims fail more often than they succeed, usually for one of three reasons: no grievance was ever lodged, the conduct was unpleasant but not intolerable, or the resignation was really about something else, such as an approaching disciplinary hearing or a better offer elsewhere.

If your facts are strong, get them in writing now. If they are not, an unfair labour practice referral, a grievance, or a negotiated exit may serve you better. Free help is available from your union, the CCMA, and Legal Aid South Africa on 0800 110 110.