Constructive Dismissal in South Africa: Resigning Because You Were Forced

Usually, if you resign, you cannot claim unfair dismissal. You chose to leave, so you can't sue your employer for firing you.

Constructive Dismissal is the exception. This happens when you technically resigned, but legally, it was actually a dismissal because your employer made your working conditions so intolerable that you had no choice but to leave.

1. The Legal Test for Constructive Dismissal

Proving constructive dismissal at the CCMA is difficult. The onus is on YOU (the employee) to prove that you were forced out.

You must prove three things:

You terminated the contract: You resigned (or absconded).
Continued employment was intolerable: The situation was so bad that no reasonable person could be expected to stay.
The employer was the cause: The intolerable situation was created by the employer's unfair conduct.

2. What Counts as "Intolerable"?

Not every unhappy workplace is "intolerable." The CCMA sets a high bar.

Examples of Intolerable Conduct:

Non-payment of salary: Your employer consistently fails to pay you without a valid reason.
Sexual Harassment: Your employer harasses you or fails to protect you from harassment by others.
Physical Assault: Your boss threatens or hits you.
Humiliation: Being verbally abused or humiliated in front of colleagues repeatedly.
Unfair Demotion: Your salary or rank is arbitrarily reduced without procedure.

What is NOT Constructive Dismissal:

Disciplinary Action: Resigning because you are facing a disciplinary hearing (even if you think you are innocent) is usually not constructive dismissal. You should stay and fight your case.
Unpleasantness: A grumpy boss or a heavy workload is not enough.

3. The "Last Resort" Rule

The CCMA will ask: "Did you try to fix it before you left?"

If you resigned without lodging a grievance or trying to resolve the issue internally, your case will likely fail. You must show that you exhausted all internal remedies and resignation was truly your last resort.

4. How to Refer a Dispute

If you believe you have been constructively dismissed, you must refer a dispute to the CCMA (or Bargaining Council) within 30 days of your resignation.

Step 1: Complete Form 7.11

Download the "Referral for Conciliation and Arbitration" form from the CCMA website.

Step 2: Serve the Employer

Email or fax a copy of the form to your ex-employer. Keep the proof of service.

Step 3: Submit to CCMA

Email the form and proof of service to the CCMA regional office.

Step 4: Conciliation

You and your employer will meet with a Commissioner to try and settle the dispute. If no settlement is reached, the matter goes to Arbitration.

5. Compensation

If you win your case, the CCMA can award you up to 12 months' salary as compensation. Reinstatement is rare in constructive dismissal cases because the employment relationship has usually broken down completely.

FAQ

I resigned in the heat of the moment. Can I take it back? Generally, resignation is final. However, if you resigned in extreme anger or emotional distress (and your employer knew this), you might be able to argue that you lacked the clear intention to resign. You should retract it immediately in writing.

Can I claim UIF if I resign? Usually, no. But if you win a constructive dismissal case at the CCMA, the dismissal is recorded as "unfair dismissal," and you may be able to claim UIF.

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