Constructive Dismissal Guide as per the CCMA

Constructive Dismissal Guide as per the CCMA:

In the realm of employment law, constructive dismissal represents a significant aspect that affects both employees and employers. It is a situation where an employee feels compelled to resign due to the employer’s actions making their continued employment unbearable.

Constructive Dismissal Guide as per the CCMA

This guide delves into what constitutes constructive dismissal, its elements, and the process of referring disputes to the Commission for Conciliation, Mediation, and Arbitration (CCMA), guided by South African legislation, specifically the Labour Relations Act 55 of 1995.

What is Constructive Dismissal?

Constructive dismissal occurs when an employee terminates their contract of employment, with or without notice, because the employer has made the working environment intolerable. It is a unique form of dismissal that shifts the initial burden of proof to the employee to demonstrate the existence of constructive dismissal. If the dismissal is deemed unfair, the employee is entitled to remedies as outlined in the Labour Relations Act for unfair dismissals.

Elements of a Constructive Dismissal as per the CCMA

To establish a case of constructive dismissal, an employee must satisfy certain criteria on the balance of probabilities according to the CCMA guidelines:

  • Employer’s Conduct as the Cause: The employee must prove that their resignation was a direct result of the employer’s conduct, not due to other unrelated plans to resign.
  • Intolerability of Continued Employment: There must be clear evidence that the working conditions became unbearable for the employee. This could stem from issues such as sexual harassment, assault, or failure to pay remuneration.
  • Employer’s Responsibility: It should be evident that the intolerable conditions were created by the employer of the said employee.
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It’s important to note that employees might face difficulties in proving constructive dismissal if they resign before exhausting internal grievance procedures or complaining to higher management, assuming it’s a reasonable step given the circumstances.

Objective Test for Constructive Dismissal

The determination of constructive dismissal involves an objective test: whether it is reasonable to conclude that the employer made the employment situation unbearable for the employee. This could be due to a single incident, such as harassment, or a series of events over time, such as ongoing racial prejudice.

Referring Constructive Dismissal Disputes to the CCMA

Employees wishing to challenge a constructive dismissal must refer their dispute to the CCMA using the LRA 7.11 referral form within 30 days following the termination of their employment relationship. They may seek remedies such as reinstatement or compensation, with compensation potentially amounting to up to 12 months’ remuneration.

The burden of proving the dismissal lies with the employee, while the employer is tasked with justifying the fairness of the dismissal.

Relevant Legislation

The legal framework governing constructive dismissal in South Africa includes:

  • Labour Relations Act No 66 of 1995 as amended, specifically Sections 186(1)(e) and 193, which outline the definition of dismissal and the remedies available for unfair dismissal, respectively.


Understanding the nuances of constructive dismissal is crucial for both employees and employers. It ensures that employees are aware of their rights and the steps to take if they find themselves in an intolerable work situation. Employers, on the other hand, are reminded of the importance of maintaining a fair and conducive work environment. The CCMA plays a vital role in adjudicating disputes related to constructive dismissal, offering a legal recourse for aggrieved employees. This guide underscores the importance of adhering to established procedures and legal standards when dealing with cases of constructive dismissal.