🧱 Constructive Dismissal in South Africa: What It Means and What to Do

 



🧱 Constructive Dismissal in South Africa: What It Means and What to Do

“I didn’t quit… they pushed me out.”
These are the quiet words of Thando, a dedicated warehouse supervisor who spent seven years building a reputation for hard work. But in her final months, things changed: her working conditions became unbearable, she was constantly micromanaged, and she was excluded from key meetings. Eventually, she felt forced to resign.

This is what constructive dismissal often looks like—and it’s more common than many think.

🔍 What Is Constructive Dismissal?

Constructive dismissal happens when an employee resigns not because they want to—but because the employer made the working environment intolerable. Under South African labour law, this is treated as a dismissal initiated by the employer, even though the employee resigned.

In legal terms, it’s a form of unfair dismissal if the resignation was not voluntary, but due to the employer’s conduct.

📜 What the Law Says (Labour Law South Africa)

According to Section 186(1)(e) of the Labour Relations Act (LRA):

“Dismissal means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.”

So, if you resign because of your employer’s behaviour, the burden of proof is on you to show that:

  • The working conditions were objectively intolerable.

  • You had no reasonable alternative but to resign.

  • The employer’s actions (or lack of action) caused your resignation.

⚠️ Real-Life Examples of Constructive Dismissal

Let’s make this clearer with some real examples from South African workplaces:

  1. Repeated Humiliation: A skilled technician resigns after months of being shouted at in front of colleagues by his supervisor.

  2. Unreasonable Demotion: A team leader is suddenly demoted without cause or consultation and her responsibilities are reassigned.

  3. Failure to Act on Harassment: An employee reports sexual harassment, but HR takes no action, leaving her vulnerable and unsupported.

  4. Unfair Changes to Job Conditions: A retail worker’s hours are drastically cut without explanation, making it impossible to earn enough to survive.

In all these cases, the employee may have a valid constructive dismissal case.

👣 What to Do if You Think You’re Being Pushed Out

If you're in a situation where your job is becoming unbearable, follow these steps before you resign:

  1. Document Everything

    • Keep a diary of events.

    • Save emails, memos, messages—everything that supports your claim.

  2. Raise the Issue Internally

    • Use formal grievance procedures.

    • Give the employer a chance to fix the problem.

  3. Get Legal Advice or Speak to Your Union

    • A labour consultant or union rep can assess whether you have a constructive dismissal case.

  4. Don’t Resign Emotionally

    • Once you resign, you’ll need strong evidence that the decision was not voluntary.

  5. Approach the CCMA

    • You must refer your case to the CCMA within 30 days of resigning.

    • The CCMA will attempt conciliation and possibly arbitration if no resolution is reached.

💼 Advice for Employers and HR

If you're an employer or HR practitioner:

  • Treat all grievances seriously, especially those involving working conditions.

  • Train managers on respectful communication.

  • Never ignore complaints of bullying, harassment, or unfair treatment.

  • If a resignation is looming, ask: “Is there something we can fix?”
    It might prevent costly CCMA disputes later.

✅ What Have We Learned?

  • Constructive dismissal is not just quitting a job—it’s being forced out through unbearable conditions.

  • The employee must prove that no reasonable person would stay.

  • It's governed by South African labour law, specifically the LRA.

  • Employees must act carefully, document everything, and seek help before resigning.

  • Employers must create a culture where issues are addressed early and fairly.

💬 Final Thought

Thando’s story, sadly, is not unique. But with awareness, fairness, and proper processes, both employees and employers can protect their rights and prevent resignations from turning into legal battles.


Leslie

Visit my new Google site today, just click here


Comments

Post a Comment

Popular posts from this blog

When Justice Is Delayed: Power, Harassment, and the Fight for Fairness

Image
When Justice Is Delayed: Power, Harassment, and the Fight for Fairness Harassment in the workplace isn’t just a violation of ethics—it’s a painful betrayal of trust.  When those in power exploit their positions, the damage cuts deeper, especially when the systems designed to protect us fail to respond.  The ongoing allegations of sexual harassment involving the Eastern Cape Judge President remind us that this issue isn’t confined to offices or factories—it reaches even into the heart of our justice system. For many, these cases reveal an unsettling truth: justice often moves at a snail’s pace, if it moves at all. Investigations stretch on for years, outcomes are elusive, and victims are left waiting, their lives in limbo.  In the silence of these delays, the message seems clear: power protects its own. When Power Hides Behind Systems Harassment thrives where power goes unchecked.  Whether in a boardroom, a government office, or even a courtroom, those at the top ofte...
Read more

The proposed Draft Code on Good Practice on Dismissal

Image
  The proposed Draft Code on Good Practice on Dismissal has sparked strong opposition from trade unions while receiving cautious approval from legal experts. The key debate revolves around whether the new code provides necessary flexibility for businesses or erodes workers' rights. Key Concerns from Trade Unions (GIWUSA & SAFTU) Greater Employer Flexibility: The code allows employers more leeway in handling dismissals, particularly regarding probationary employees and procedural requirements . Less Formal Disciplinary Processes: Particularly for small businesses , reducing their obligation to have formal disciplinary procedures. Expansion of Incapacity Grounds: New provisions include supervening impossibility (e.g., imprisonment) and incompatibility , which could lead to more dismissals. Risk of Procedural Unfairness: Lack of clear definitions for what constitutes a small business and what "less formal" means. Involvement in Nedlac Negotiations:...
Read more

Most Workplace Disputes Start with One Tiny Mistake—Are You Making It?

Image
  Most Workplace Disputes Start with One Tiny Mistake—Are You Making It? I t started with a simple misunderstanding. James, a dedicated employee of five years, had been feeling overwhelmed. His manager, Sarah, noticed his performance slipping and decided to have a quick chat about it. In passing, she said, "If you’re not happy here, maybe it’s time to move on." James, already on edge, took it as a push to resign. Without a formal discussion or exit interview, he submitted his resignation letter. Two weeks later, Sarah was hit with a CCMA case for constructive dismissal. Her mistake? Underestimating how a single sentence could be interpreted. The One Tiny Mistake That Starts Big Problems M ost workplace disputes don’t begin with major infractions—they start with small errors in communication, inconsistent policies, or a failure to address issues early. What seems like a casual remark, a minor oversight, or an assumption can spiral into legal trouble. The High Cost o...
Read more