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.

This guide is part of our Discipline at work: warnings, hearings and dismissal, which links every guide on the topic.

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.

A worked example

This example is illustrative.

Naledi is a bookkeeper earning R16 000 a month. Over four months her new manager shouts at her in front of colleagues, moves her desk into a storeroom, and tells her twice that she should "just resign if she cannot handle it". In month three her salary is paid a week late without explanation, and in month four it is short by R2 000 with no payslip to explain the deduction.

Naledi lodges a written grievance with HR in month three, describing each incident with dates and asking for the conduct to stop and the shortfall to be paid. HR schedules a meeting, the manager denies everything, and nothing changes. Naledi escalates in writing to the financial director. Two weeks later, with no response, she resigns. Her resignation letter says that she is resigning because of the conduct described in her grievance, that the employer has failed to address it, and that she regards herself as constructively dismissed.

She refers the dispute to the CCMA nine days later. At arbitration she produces the grievance, the escalation email, the late and short payslips, and a colleague who saw the desk move and the shouting. The employer argues that she left for a better job. Her letter, her grievance and the timing make that hard to sustain. If the commissioner finds that continued employment was intolerable and that the employer caused it, compensation is the likely remedy, up to a cap of 12 months' remuneration, which for Naledi is R192 000. In practice awards are often well below the cap, and a commissioner will weigh how long the conduct went on, what the employer did about it, and whether Naledi found other work quickly.

Now remove the grievance. Same facts, but Naledi never complained in writing and simply resigned with a polite thank you letter. The employer says it never knew. The case is very likely to fail.

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. Our guide on how a grievance procedure works explains the steps, and the grievance letter template gives you a starting point.
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.

Documents to gather

Before you resign, and certainly before you lose access to your work email, collect your contract, your payslips, the grievance procedure, every grievance and complaint you lodged with proof of delivery, every reply, your own dated notes of each incident, messages and emails that show the conduct, medical notes if your health was affected, the names of witnesses, and your resignation letter. If pay was cut or withheld, keep the payslips that show it and any written objection you sent. The referral form, proof of service and the CCMA's confirmation join the same file once you refer.

Your rights and your employer's rights

You have the right to a workplace that is not intolerable, to lodge a grievance and have it dealt with, to object in writing to a unilateral change in your pay or conditions, to refuse an unlawful instruction, to be protected from harassment, and to treat a resignation forced by the employer's conduct as a dismissal.

Your employer has the right to manage performance, to give lawful and reasonable instructions, to discipline you through a fair process, to restructure duties within the terms of your contract, and to argue at arbitration that you left voluntarily or for another reason. It does not have the right to change your pay without agreement, to ignore a grievance, or to make you choose between resigning and being dismissed.

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.

A realistic timeline

• Months before resigning. Grievance, escalation, records. This period is where the case is actually won or lost.
• Day 0. Resignation takes effect. The 30 day referral period starts.
• Days 1 to 25. Complete, serve and file the referral.
• Roughly 30 days after filing. Conciliation.
• Within 90 days of the certificate. Request arbitration.
• Weeks to months later. Arbitration, often more than one day because your own evidence is the centre of the case.
• About 14 days after the hearing. The award.

Common mistakes and what they cost

• Resigning without a written grievance. It is the single most common reason these claims fail.
• A neutral resignation letter. It is read as a voluntary departure.
• Resigning on the day of a disciplinary hearing. It looks like avoidance, and it usually is treated that way.
• Waiting months after the conduct to resign. The employer will argue that if it was truly intolerable you would have left sooner.
• Missing the 30 day deadline while deciding whether to claim.
• Leaving without another job. Ordinary UIF unemployment benefits are usually not available to someone who resigned, so the financial pressure while the case runs is real.

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. Our guide on claiming UIF if you resign explains the position, including what changes if the CCMA later finds that you were constructively dismissed. 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.

If you cannot afford an attorney

The CCMA on 0861 16 16 16 and bargaining councils are free, and a union represents its members at no extra charge. Legal Aid South Africa is on 0800 110 110 and applies a means test. Legal representation at CCMA arbitration is not automatic for misconduct and incapacity dismissals and the commissioner decides whether to allow it, though a constructive dismissal case turns on your own evidence and the paper trail more than on legal argument. Where free advice makes the biggest difference is before you resign, so use it then.