What exactly does constructive dismissal mean and what must an employee prove to be successful at the CCMA?


In terms of Section 186(1)(e) of the Labour Relations Act, constructive dismissal is defined as when “an employee terminated (a contract of) employment with or without notice because the employer made continued employment intolerable for the employee”.


In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LC) the Judge set out the test for constructive dismissal as follows: “Where an employee resigns or terminates the contract as a result of constructive dismissal such employee is, in fact, indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee’s most important function, namely to work.  The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created.  She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment.  If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned”.


It is very important to mention that a mere unhappiness at work is not enough to claim constructive dismissal as stated in Jordaan v CCMA & others (2010).


There are three requirements to establish constructive dismissal:

  • The employee must have terminated the contract of employment;
  • The reason for termination of the contract must be that continued employment has become intolerable for the employee;
  • It must have been the employee’s employer who had made continued employment intolerable.


The employee will furthermore have to prove that all alternative remedies have been exhausted and that resignation was the last resort.  By alternative remedies it is meant that grievances may be lodged by the employee.  If the employer only became aware of an employee’s unhappiness by the time the resignation is received, the employee will not be able to prove constructive dismissal.


The Courts have however accepted situations to be intolerable which could constitute constructive dismissal.  Just to name a few:

  • Sexual and other forms of harassment;
  • Unjustified disciplinary action;
  • Ordering an employee to perform unlawful acts.


Since constructive dismissal referrals to the CCMA have increased, the Commissioners must be cautious in adopting a wide interpretation of what conduct by an employer constitute constructive dismissal, because of the danger of inviting a flood of employees who resign to seek protection from the Labour Relations Act.


Article by: Marteleen Lindemann

CEO Dispute Resolution Official – Klerksdorp