Constructive Dismissal

When Does an Employee Have the Right to Institute a Constructive Dismissal Claim?

The phrase “constructive dismissal” refers to the dismissal of an employee because the employer has made continued employment intolerable and the employee resigns. Employees claim that they have resigned because of their workplace environment being made intolerable and therefore their resignation falls within the category of unfair dismissal.

Enough Evidence

The employee must provide enough evidence to show that the circumstances surrounding the resignation were intolerable and which led to their resignation. The employee must thus prove that the employer created the unbearable circumstances which led to the employee having no other choice than to resign. The employee must thus be able to show that if not for the intolerable work circumstances created by the employer that the employee would have worked at the employer indefinitely.

An employer can just as easily argue that the unbearable circumstances were created by temporary conditions and not circumstances that would be present indefinitely. The employer can also argue that the employee already threatened with resignation even before the circumstances became intolerable. It is thus important that the employee is able to show that the circumstances were not created by their resignation or were just temporary.

How Constructive Dismissal Is Tested

The employee must be able to prove that resignation was the only viable option if he or she wanted to solve the problem of unbearable work circumstances deliberately created by the employer. The employee for instance, must have attempted to file a formal grievance complaint or must have approached the Department of Labour or a union in order to solve the problem before resigning. If the employee is not able to provide enough evidence to support the constructive dismissal claim the employer has no obligation to employ the employee again.

Constructive dismissal is extremely difficult to prove and the only successful cases are those where the employer has not done anything to intervene in discrimination or harassment instances, where the employer has changed the original terms & conditions of the employment contract and where the employer has taken disciplinary action against the employee without due cause. Note that the employer does not have to prove that he did not introduce unbearable work conditions. The employee has the responsibility to prove it.

The test entails:

  • Employee had no other alternative than to resign.
  • The employee not having any other motive for their resignation.
  • The employee would have continued to work at the employer indefinitely had the circumstances not become intolerable because of the actions of the employer.
  • The employee already sought other means to solve the problem.
  • The circumstances were not temporary such as the result of company policy changes.
  • The employer was directly responsible for the intolerable work circumstances.


Types of Constructive Dismissal Applications that Fail

Applications brought to the CCMA for constructive dismissal fail because the applicants have not been able to prove the above. Generally applications for such with the argument that the employer refused bonuses or didn’t increase the remuneration or the employee wasn’t considered for promotion fail since the actions of the employer in such instances are not sufficient to argue intolerable employment conditions.

If an employee resigns voluntarily to avoid disciplinary action the employee cannot argue for constructive dismissal. The employer still has the right to have the disciplinary hearing irrespective of the employee’s presence. Where an employer threatens the employee with disciplinary hearing proceedings if the employee doesn’t resign, the employee will have grounds to claim constructive dismissal, subject to the already mentioned conditions such as intolerable work conditions being present.

Constructive dismissal is thus not a straightforward labour issue and we recommend calling in the help of our labour law attorneys in lodging a complaint or defending against such a complaint.


*NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.

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