Losing your job is stressful, but understanding whether your dismissal is unfair or amounts to constructive dismissal is essential when deciding what legal remedies are available. Although both concepts fall under the Labour Relations Act 66 of 1995 (LRA), they arise in different circumstances and require different legal tests.
Many employees mistakenly believe that resigning automatically prevents them from bringing a claim against their employer. However, South African labour law recognises that, in certain situations, an employer’s conduct may effectively force an employee to resign. This is known as constructive dismissal.
This article explains the difference between constructive dismissal and unfair dismissal in South Africa, the legal requirements for each, and the remedies that may be available.
What Is Unfair Dismissal?
An unfair dismissal occurs when an employer terminates an employee’s employment without a fair reason or without following a fair procedure.
Under the Labour Relations Act, employers must have both:
- A substantively fair reason for dismissal; and
- A procedurally fair process before terminating employment.
A dismissal may be unfair if either of these requirements is missing.
Common Reasons for Unfair Dismissal
Examples include:
- Dismissal for misconduct that does not justify termination.
- Retrenchment where the employer fails to follow consultation procedures.
- Dismissal for poor performance without proper counselling or assistance.
- Dismissal based on discrimination, pregnancy, whistleblowing or union membership.
- Failure to conduct a fair disciplinary hearing.
Remedies for Unfair Dismissal
If the CCMA or Labour Court finds that a dismissal was unfair, possible remedies include:
- Reinstatement to the employee’s previous position.
- Re-employment on agreed terms.
- Compensation, depending on the circumstances of the case.
Reinstatement is the primary remedy unless exceptional circumstances exist.
What Is Constructive Dismissal?
A constructive dismissal occurs when an employee resigns because the employer has made continued employment intolerable.
Although the employee resigns voluntarily, the law may treat the resignation as a dismissal if it was effectively forced by the employer’s conduct.
Constructive dismissal is governed by section 186(1)(e) of the Labour Relations Act, which provides that an employee is dismissed if they terminate employment because the employer made continued employment intolerable.
Examples of Constructive Dismissal
Situations that may lead to a constructive dismissal claim include:
- Persistent workplace harassment or bullying.
- Sexual harassment.
- Significant unilateral changes to employment conditions.
- Non-payment of salary or repeated late payment.
- Victimisation after raising workplace complaints.
- An unsafe or hostile working environment.
- Serious breaches of the employment contract by the employer.
Not every unpleasant workplace amounts to constructive dismissal. Employees must satisfy a demanding legal test.
The Legal Test for Constructive Dismissal
To succeed with a constructive dismissal claim, an employee generally must prove that:
- The working conditions became objectively intolerable.
- The intolerable conditions were caused by the employer.
- The employer’s conduct amounted to a serious breach of the employment relationship.
- The employee had no reasonable alternative other than resigning.
The burden of proving constructive dismissal rests on the employee.
Because this is a high threshold, employees should seek legal advice before resigning.
Practical Advice for Employees
If you believe you are experiencing unfair treatment at work:
- Keep detailed records of incidents, emails, WhatsApp messages and correspondence.
- Report workplace problems using your employer’s grievance procedures.
- Give your employer an opportunity to address the issue where appropriate.
- Avoid resigning impulsively.
- Obtain legal advice before resigning if you are considering a constructive dismissal claim.
- Be aware that disputes generally need to be referred to the CCMA within the prescribed time limits.
Taking these steps can significantly strengthen your case should litigation become necessary.
Practical Advice for Employers
Employers can reduce the risk of dismissal disputes by:
- Maintaining a safe and respectful workplace.
- Applying disciplinary procedures consistently and fairly.
- Investigating grievances promptly.
- Keeping comprehensive records of disciplinary action and workplace complaints.
- Ensuring managers receive training on labour law obligations.
- Seeking legal advice before dismissing employees or making significant changes to employment conditions.
A proactive approach helps minimise the risk of costly CCMA or Labour Court proceedings.
When Should You Consult a Labour Lawyer?
Whether you are an employee considering resignation or an employer facing a dismissal dispute, obtaining legal advice at an early stage can help protect your rights.
Constructive dismissal claims are often difficult to prove because the employee must establish that resignation was the only reasonable option. Similarly, employers who dismiss employees without following fair procedures risk substantial legal consequences.
Professional legal advice can help assess the strength of a claim, ensure compliance with the Labour Relations Act, and improve the likelihood of a successful outcome.
Frequently Asked Questions
Can I claim constructive dismissal if I resigned voluntarily?
Yes, but only if you can show that your employer made continued employment objectively intolerable, leaving you with no reasonable alternative but to resign.
What is the difference between constructive dismissal and unfair dismissal?
The main difference is that unfair dismissal occurs when the employer terminates employment unfairly, whereas constructive dismissal arises when the employee resigns because the employer’s conduct has made continued employment intolerable.
What remedies are available?
Successful claims may result in:
- Reinstatement
- Re-employment
- Compensation
The appropriate remedy depends on the facts of each case.
How do I prove constructive dismissal?
Evidence is critical. Useful evidence may include:
- Emails and written communications
- Witness statements
- Grievances lodged with management
- Medical reports where relevant
- Records of harassment, discrimination or bullying
- Evidence showing that reasonable attempts were made to resolve the problem before resigning
Conclusion
Understanding the distinction between constructive dismissal and unfair dismissal in South Africa is essential for both employees and employers. While both claims can lead to reinstatement or compensation, they arise from different circumstances and require different legal tests.
If you are facing a workplace dispute, obtaining legal advice before taking action can make a significant difference to the outcome of your case.
If you are involved in a CCMA dispute, professional legal guidance can help protect your rights and achieve the best outcome.
Article written by Craig Berkowitz
23 July 2026
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
📞 083 453 1822
✉️ cblaw@netactive.co.za
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