Constructive Dismissal in South Africa

Constructive Dismissal in South Africa: The 2026 Legal Test for Employers

Constructive dismissal begins with an apparent contradiction: the employee resigns, yet may still claim to have been dismissed. Under section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA), that claim arises where the employer made continued employment intolerable. The legal question is not whether a manager intended to force the employee out, but whether the employer’s conduct objectively crossed that high threshold. [1]

The Constitutional Court’s 2026 decision in *Maleka v Boyce N.O. and Others* gives employers a current framework. A difficult working relationship, an unpopular decision, or an uncomfortable workplace is not enough. The employee must show that the employer’s conduct, or failure to act, made continued employment objectively intolerable. [2]

Constructive Dismissal: What Must Be Proven?

The employee must first prove a dismissal. In practical terms, this means proving three connected things: that they resigned; that conditions had become intolerable; and that the employer caused that intolerability. Personal perception is not decisive. The assessment is objective and fact-specific. [2]

This is not a test of whether the employee had literally no alternative other than resignation. The Constitutional Court confirmed in *Strategic Liquor Services v Mvumbi NO and Others* that the real enquiry is whether the employer made continued employment intolerable. [3] Resignation must ordinarily be a last resort, not a tactical response to ordinary workplace conflict.

A Difficult Workplace Is Not Necessarily Constructive Dismissal

In *Maleka*, an employee resigned after a proposed change to his reporting line during a restructuring. The Court found no constructive dismissal because the change had not yet taken effect, and there was no reduction in title, responsibilities, remuneration, or position, nor evidence of hostile or oppressive conduct. Dissatisfaction with a future arrangement is not the same as existing intolerability. [2]

The distinction matters. A single serious incident, such as grave harassment or an egregious attack on an employee’s dignity, may be enough. More often, a claim rests on a pattern: unresolved harassment, deliberate humiliation, unlawful demotion, discriminatory treatment, or an employer’s persistent refusal to address a legitimate grievance. The question is whether the employer allowed or created conditions that a reasonable person could not be expected to endure.

Why the Grievance Process Matters in a Constructive Dismissal Claim

Where an employer has a workable grievance procedure, an employee’s failure to use it can seriously weaken a constructive dismissal claim. In *Maleka*, the Court held that merely assuming a grievance process will fail, or saying that there is no confidence in it, is not enough. There may be exceptional circumstances where using it is genuinely futile or inappropriate, but those circumstances must be proved. [2]

For employers, this is the control point. A grievance should never be treated as an administrative irritation. Acknowledge it promptly, appoint an impartial decision-maker where the complaint concerns a senior manager, investigate the facts, consider practical interim measures, and give a reasoned outcome in writing. The 2025 Code of Good Practice: Dismissal reinforces the value of a fair, proportionate process, even in a small business. [4]

Act Before a Resignation Becomes a CCMA Case

An employee alleging constructive dismissal must normally refer the dispute to the CCMA or a bargaining council within 30 days of dismissal. [1] That deadline is a reason to preserve records immediately after any resignation that cites working conditions, management conduct, harassment, or unfair treatment.

At Welman Attorneys Inc., the team assists employers to investigate grievances, manage constructive dismissal risk, and protect the employment relationship before a dispute escalates. [Contact us](https://www.welmanattorneys.co.za/contact-us/) for practical labour-law guidance.

References

[1] Labour Relations Act 66 of 1995, sections 186(1)(e) and 191: Click Here 

[2] *Maleka v Boyce N.O. and Others* [2026] ZACC 7: Click Here 

[3] *Strategic Liquor Services v Mvumbi NO and Others* [2009] ZACC 17: Click Here

[4] Applying the 2025 Code of Practice: Dismissal in Small Businesses in South Africa 

Related Reading

What is a constructive dismissal? Click Here

Disciplinary hearing procedures: Click Here

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