Constructive dismissal happens when an employee resigns because the employer has made working conditions so intolerable that the employee feels they have no choice but to leave. In South African law, this type of resignation is treated as a dismissal and may be challenged as unfair.
On this page, you will learn what constructive dismissal means in South Africa, the laws that govern it, how the concept has developed historically, the implications for both employers and employees, and the key points to remember if you are faced with such a situation.
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Understanding Constructive Dismissal in South African Law
The Labour Relations Act 66 of 1995 (LRA) recognises constructive dismissal under Section 186(1)(e). It defines it as a situation where:
- The employee resigns.
- The resignation is due to the employer making continued employment intolerable.
- The intolerable conditions were created by the employer, whether deliberately or negligently.
The burden of proof lies with the employee, who must show that the resignation was not voluntary but forced by the employer’s conduct.
Historical Development of Constructive Dismissal Law
- Pre-1995: South African labour law did not clearly recognise constructive dismissal. Employees who resigned had little recourse.
- 1995 LRA: Introduced Section 186, giving employees the right to challenge resignations caused by unfair treatment.
- Case Law: Courts have clarified what counts as “intolerable conditions,” including harassment, victimisation, and unfair treatment.
- Constitutional Influence: The right to fair labour practices strengthened the recognition of constructive dismissal claims.
Legal Framework Governing Constructive Dismissal
- Labour Relations Act 66 of 1995 (LRA) – Defines constructive dismissal and sets procedures for disputes.
- Basic Conditions of Employment Act 75 of 1997 (BCEA) – Supports fair employment conditions.
- Employment Equity Act 55 of 1998 – Prevents unfair discrimination that could lead to constructive dismissal.
- Constitution of the Republic of South Africa, 1996 – Protects the right to dignity and fair labour practices.
- Case Law (e.g., Jooste v Transnet Ltd) – Interprets the meaning of intolerable conditions.
Implications of Constructive Dismissal in South Africa
- For Employees: Employees can challenge constructive dismissal at the CCMA within 30 days of resignation.
- For Employers: Employers may be held liable if they create or allow hostile working conditions.
- Burden of Proof: Employees must prove that conditions were intolerable and caused resignation.
- Remedies: CCMA or Labour Court may order reinstatement, re-employment, or compensation.
- Workplace Culture: Constructive dismissal claims highlight the importance of fair, respectful management.
Five Key Points to Consider About Constructive Dismissal
- Resignation Is Not Always Voluntary: If forced by conditions, it counts as dismissal.
- Intolerable Conditions: Harassment, victimisation, or unfair demotion may qualify.
- Employee Must Prove: The burden of proof lies with the employee, not the employer.
- CCMA Is the First Step: Disputes must be referred within 30 days.
- Remedies Can Be Severe: Compensation up to 12 months’ salary, or reinstatement, may be awarded.
Real-Life Example
An employee is repeatedly harassed by a supervisor and reports it to management, but no action is taken. The harassment continues until the employee resigns. The CCMA finds that the employer failed to provide a safe workplace, and rules the resignation a constructive dismissal, awarding compensation.
Frequently Asked Questions About Constructive Dismissal in South African Law
Constructive dismissal happens when an employee resigns because the employer made the working environment unbearable, leaving no reasonable option but to resign. Although it looks like a resignation, the law treats it as a form of dismissal. The Labour Relations Act (LRA) gives employees the right to challenge constructive dismissal. Below are the most common questions about this type of dismissal in South Africa.
What is constructive dismissal?
It is when an employee resigns due to unbearable working conditions created by the employer, such as harassment, victimisation, or unfair treatment.
Is constructive dismissal the same as resignation?
No. Ordinary resignation is voluntary, while constructive dismissal happens when resignation is forced by intolerable workplace conditions.
What must an employee prove in a constructive dismissal case?
The employee must show that the employer made the work environment intolerable, that they had no reasonable alternative but to resign, and that the employer was responsible for the situation.
Can constructive dismissal be claimed at the CCMA?
Yes. Employees must refer the dispute to the CCMA within 30 days after resigning.
What remedies are available for constructive dismissal?
Employees may be reinstated, re-employed, or awarded compensation of up to 12 months’ salary if the CCMA rules in their favour.
What role does the employer play in defence?
The employer must prove that they did not create intolerable conditions and that the employee resigned voluntarily.
Can constructive dismissal apply during probation?
Yes. Even probationary employees can claim constructive dismissal if the employer makes their conditions unbearable.
Conclusion
Constructive dismissal is a vital protection in South African labour law, ensuring that employees are not forced out by intolerable working conditions. Supported by the LRA, BCEA, and constitutional rights, it gives employees legal remedies when resignation is not truly voluntary.
For South Africans, understanding constructive dismissal laws ensures that workers know when their rights have been violated, and guides employers to prevent hostile work environments.
