Know Your Rights
Constructive Dismissal in South Africa
If you resigned because your employer made continued employment intolerable, the law treats it as a dismissal — and you have the right to challenge it.
⏰ Important deadline
You have 30 days from the date of your resignation to refer a constructive dismissal dispute to the CCMA. The 30-day clock starts when you resign, not when the conduct began.
Constructive dismissal is when you are forced to resign because your employer's conduct — or failure to act — made it impossible to continue working there. You did not choose to leave; you were effectively pushed out. South African law recognises this as a dismissal and gives you the right to refer the dispute to the CCMA.
What South African law says
Section 186(1)(e) of the LRA defines dismissal to include a situation where an employee terminates employment because the employer made continued employment intolerable. The test has two parts: (1) did the employer's conduct make continued employment intolerable? (2) would a reasonable employee in your position have resigned? Courts assess this objectively — your personal feelings matter, but they must be supported by the facts.
When dismissal may be fair
- ✓You resigned voluntarily for personal reasons unrelated to the employer
- ✓You resigned to take a better job opportunity
- ✓You resigned while facing legitimate disciplinary action
- ✓The working conditions, while difficult, did not meet the legal threshold of intolerable
- ✓You did not give the employer an opportunity to address the problem
Signs your dismissal may be unfair
- ✗Your employer unilaterally cut your salary without consultation
- ✗You were demoted without being consulted
- ✗You were subjected to ongoing harassment or bullying that was not addressed
- ✗Your employer failed to act on serious complaints you raised repeatedly
- ✗You were marginalised — given no work, excluded from meetings, isolated
- ✗You resigned to protect your health after a diagnosed mental health impact
Real CCMA case
In Sanlam Life Insurance v Mogomotsi [2023], an employee developed a mental health condition linked to persistent workplace bullying. The employer was aware of the condition but took no action. The Labour Appeal Court found this constituted constructive dismissal — the employer's knowledge of the employee's condition and its indifference made continued employment intolerable. The employee was awarded compensation.
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Common questions
Do I need to raise the problem with my employer before resigning?
Generally yes — you should give your employer a chance to fix the problem before resigning. If you resigned without raising the issue, it becomes harder to prove the employer made employment intolerable. The exception is where raising the issue would have been futile.
Can I claim constructive dismissal if I resigned during a disciplinary process?
Not usually. Facing legitimate disciplinary action does not make continued employment intolerable. Courts have consistently held that resigning to avoid discipline is not constructive dismissal.
How long does my employer have to fix the problem?
There is no set timeframe, but you should give your employer a reasonable opportunity to address the issue. What is reasonable depends on the severity of the conduct.
Does it matter that I resigned on notice instead of immediately?
Not necessarily. Resigning on notice does not contradict a constructive dismissal claim — you may have had financial reasons to work out your notice. Courts look at the reason for resignation, not just its timing.