A resignation the law can treat as a dismissal
Constructive dismissal is defined in section 186(1)(e) of the Labour Relations Act: an employee ends the employment, with or without notice, because the employer made continued employment intolerable. If the employee proves it, the resignation becomes a dismissal, and the employer then has to show the dismissal was fair, which in practice it rarely can.
The three things the employee must prove
they resigned + because work had become intolerable + the employer made it so
Two consequences matter to an employer reading a resignation letter tonight. The bar is high: unhappiness is not intolerability. And the case is decided on the record of what happened before the resignation, which is why a written grievance procedure is the best defence a small business can have.
The part that gets tested later
Constructive dismissal cases are decided on what was recorded before the resignation. Think of the last employee who left unhappy. Could you show every complaint they raised, and what was done about each one?
The case is decided on what happened before this letter, not on the letter.
The test for constructive dismissal in South African law
The courts apply an objective test, set out by the Supreme Court of Appeal in Murray v Minister of Defence: did the employer, without reasonable and proper cause, behave in a way calculated or likely to destroy or seriously damage the relationship of trust? The question is not whether this employee felt the situation was unbearable, but whether a reasonable employee in their position would have.
Usually enough
Sustained harassment the employer knew about and ignored; a demotion or pay cut imposed without consultation; being stripped of duties to force a resignation; an ultimatum to resign or be dismissed.
Usually not enough
A personality clash; a fair performance process the employee disliked; a reasonable restructuring after consultation; a single incident the employer dealt with properly.
Decided on the record
Whether the employee raised it, whether the employer responded, and whether a grievance procedure existed and was used.
What changed in 2026: Maleka v Boyce
In Maleka v Boyce N.O. and Others [2026] ZACC 7, decided on 24 February 2026, the Constitutional Court considered an executive who resigned after a restructuring changed his reporting line, which he saw as a demotion. The majority held he had not proved constructive dismissal, for two reasons employers should note:
Anticipated intolerability is not enough
He resigned on what he expected the new arrangement to become, not on conditions that were already objectively intolerable.
He did not use the grievance procedure
Complaints made informally to a manager over several months were not a substitute for a formal grievance. The internal route existed and was not used.
A minority agreed on the legal test but read the facts more broadly. The practical lesson is the same either way: a written grievance procedure, actually offered, changes the outcome. If you have none, the leave policy and disciplinary templates are a start, and the 2026 law changes page covers the other decisions of the year.
What to do when a resignation letter says constructive dismissal
Acknowledge it in writing, without arguing
Confirm receipt and the last working day. Do not debate the allegations in the reply; that is what the record and, if it comes, the CCMA are for.
Offer the grievance process, even now
Invite the employee to put the complaint through the grievance procedure before they leave. If they decline, that refusal is part of the record.
Gather the record while it is fresh
Every complaint they raised and what was done about it, any change to their role, pay or reporting line and how it was consulted on, and the emails and meeting notes around it.
Process the exit normally
Final pay, accrued leave, a certificate of service and a UI-19 declared as a resignation. Withholding any of them only adds a claim.
Diary the 30 days
A referral, if it comes, will arrive within 30 days of the resignation taking effect. The CCMA referral guide covers the first week.
What a grievance procedure needs to stand up
After Maleka, the most useful single document a small business can have against a constructive dismissal claim is a grievance procedure that exists, that staff know about, and that is actually used. It does not need to be long. It needs five things:
A named first stop
Who an employee raises a grievance with, and who they go to instead when the complaint is about that person.
A written form or email
A grievance is lodged in writing, with the date. Verbal complaints are welcome, but the employee is then asked to put it in writing so it can be dealt with.
A time frame
A meeting within a few working days and a written response within a stated period, for example five working days.
An escalation route
If the employee is not satisfied, a second level: a director, the owner, or an outside facilitator in a very small business.
A written outcome, kept on file
What was found, what will change, and by when. Kept on the employee record, so it exists if the relationship later breaks down.
Then make sure people know it is there: in the contract or staff handbook, in induction, and again whenever someone complains informally. The question a commissioner will ask is not only whether the procedure existed, but whether this employee was told about it and given a real chance to use it.
How employers prevent constructive dismissal claims
Almost every successful claim has the same shape: a change or a conflict, a complaint that went nowhere, and a resignation months later. Each step leaves something you could have recorded.
Consult before changing terms
Pay, hours, role and reporting lines are terms of employment. Change them by agreement after consultation, not by announcement.
Have a grievance procedure and point people to it
In writing, with a time frame and an escalation route. Remind an unhappy employee that it exists.
Answer every complaint on paper
A short written response, what you will look into and by when, turns a corridor complaint into a record that you acted.
Separate performance from pressure
A fair performance process is lawful. Removing someone’s duties to make them leave is not.
Never offer resign or be fired
An ultimatum is the clearest route to a finding of constructive dismissal.
The defence is a record you kept before you needed it.
Every constructive dismissal case asks the same questions: what did the employee complain about, when, and what did you do? When the answers are in a manager’s inbox and a WhatsApp chat, the employer is reconstructing its defence under a 30-day clock. Synthro keeps check-ins, warnings and employee documents on one employee record, dated, so the record already exists.
Frequently Asked Questions
What is constructive dismissal in South Africa?
Under section 186(1)(e) of the LRA, it is when an employee resigns, with or without notice, because the employer made continued employment intolerable. The law treats that resignation as a dismissal, so the employee can refer it to the CCMA as if they had been dismissed.
Who has to prove constructive dismissal?
The employee, first. They must show that they resigned because the employer made continued employment objectively intolerable. Only if they prove that there was a dismissal does the burden move to the employer to show it was fair (LRA section 192).
What is the test for constructive dismissal?
Whether the employer, without reasonable and proper cause, behaved in a way calculated or likely to destroy or seriously damage the relationship of trust, judged objectively. Unhappiness, a personality clash or a change the employee disliked is not enough on its own.
What did the Constitutional Court decide in Maleka v Boyce?
In February 2026 the majority held that an executive who resigned after a change to his reporting line had not proved constructive dismissal. Fear that things would become intolerable is not enough, and he had not used the internal grievance procedure. Informal complaints to a manager are not a substitute for a formal grievance.
How much compensation is awarded for constructive dismissal?
The same as any unfair dismissal: compensation of up to 12 months’ remuneration, or up to 24 months where the dismissal was automatically unfair (LRA section 194). Reinstatement is possible in law but rare, because the employee left the relationship.
How long does an employee have to refer constructive dismissal to the CCMA?
30 days from the date of the dismissal, which for a constructive dismissal is the date the resignation took effect. Late referrals need condonation.
Can an employee claim UIF after constructive dismissal?
The gazetted UI-19 has a code for constructive dismissal (code 7) but notes it can only be determined by the CCMA, a bargaining council or the Labour Court. An employer declares what happened on the day, a resignation, and does not self-declare code 7.
