- Constructive dismissal occurs when an employer makes continued employment objectively intolerable, forcing an employee to resign.
- Recent Labour Court and CCMA decisions show that ignored grievances, workplace bullying and unreasonable changes to working conditions can expose employers to legal liability.
- Employees must prove resignation was a last resort, while employers can reduce risk through prompt intervention, fair processes and effective grievance management.
Constructive dismissal is one of the few areas of labour law where the courts look past the resignation letter to the reality behind it because resignations are no longer taken at face value. Instead, commissioners and judges are asking whether the employer’s conduct made continued employment untenable.
Following a wave of 2025 and 2026 decisions, it’s obvious that the Labour Court and CCMA (Commission for Conciliation, Mediation and Arbitration) have tightened the test for intolerable working conditions, whether they are created through hostility, neglect, retaliation or silence.
These are no longer peripheral HR issues; they are now compliance risks, and employers who fail to intervene early are finding themselves on the wrong side of the law.
What is constructive dismissal?
Constructive dismissal is defined in Section 186(1)(e) of the Labour Relations Act (LRA) as a situation where an employee resigns because the employer made their continued employment intolerable. It is not about unhappiness, personality clashes or ordinary workplace tension. The threshold is high and objective: would a reasonable person in the employee’s position have felt they had no choice but to resign?
To succeed, an employee must show:
- They resigned.
- The working environment had become objectively intolerable.
- The employer was responsible for creating or allowing those conditions.
- Resignation was a last resort.
The CCMA emphasises that constructive dismissal is not a shortcut for employees who want to avoid disciplinary processes or who are unhappy with a management style. It is for situations where the employer’s conduct, or failure to act, destroys the employment relationship.
How courts assess 'intolerable' conditions
The courts look for evidence of a workplace that has crossed the line from difficult to intolerable. Common indicators include:
- Sustained bullying, harassment or humiliation that management ignores.
- Retaliation after an employee raises concerns or reports misconduct.
- Unreasonable changes to duties, shifts or work location imposed without consultation.
- Failure to address grievances, especially those involving dignity, discrimination and safety.
- Weaponised disciplinary processes used to push an employee out.
- A pattern of exclusion, sidelining or targeted hostility.
2025–2026 case law
1. Molefe v Department of Home Affairs (Labour Court, 2026)
In one of the most recent and influential decisions, the court found constructive dismissal where the employer repeatedly ignored the employee’s grievances about targeted exclusion and escalating hostility. While HR acknowledged the complaints, it took no steps to intervene.
The court held that silence in the face of escalating conflict can itself constitute the conduct that renders continued employment impossible. Constructive dismissal was confirmed.
2. Mahlangu v PRASA (CCMA, 2025)
The employee faced ongoing bullying by a supervisor and lodged multiple grievances that were never investigated. When he was told, “If you don’t like it, leave”, he resigned.
The CCMA held that the employer’s failure to address the bullying, combined with the supervisor’s conduct, made the workplace intolerable.
3. Sibiya v Bidvest Protea Coin (CCMA, 2025)
The employee was moved to a night shift post far from home despite medical evidence that she could not work nights. When she objected, she was told she was “free to resign”.
The commissioner found constructive dismissal, holding that unilateral changes to working conditions that disregard health considerations can render employment intolerable.
Earlier precedent-setting judgments
- Mtati v KPMG (2017) – a leading authority on employers using disciplinary processes to force employees out.
- Solidarity obo Fourie v NTP Radioisotopes (2022) – a clear articulation of the objective intolerability test.
Legal tests can feel abstract until you see how they play out in real workplaces. These three examples reflect the various experiences that often lead to constructive dismissal disputes.
Exclusion and ignored grievances
Lwazi, an operations coordinator, spent months being sidelined by a manager who reassigned his tasks, held meetings without him and publicly questioned his competence. He raised formal grievances, but HR’s only response was that he should “manage the relationship”.
His performance rating began dropping, and he was told he was “not a good fit for the team”. After his third unanswered grievance, Lwazi resigned.
A commissioner later found that the employer’s failure to intervene, despite clear evidence of targeted exclusion, created an intolerable working environment.
Retaliation after reporting misconduct
When Riyaad reported financial irregularities, he expected an investigation to be conducted. Instead, he was moved to a cramped back office, his workload doubled, and colleagues were warned not to “get involved”. The manager he had reported continued working without consequences.
As the pressure mounted and his mental health deteriorated, he resigned. The CCMA found constructive dismissal, holding that the employer’s retaliatory treatment made continued employment impossible.
Unsafe, unreasonable changes to working conditions
Anika, a senior shift supervisor with a medical condition restricting night work, was abruptly reassigned to a night shift roster at a remote site. Her medical certificates were dismissed, and she was threatened with disciplinary action when she refused the shifts.
Her grievance went unanswered. With her health at risk, she resigned. The CCMA held that the employer’s unilateral change to her working conditions, in defiance of medical evidence, rendered the workplace intolerable.
Constructive dismissal is difficult to prove, so employees must show:
- They exhausted internal remedies unless doing so would have been futile.
- They resigned as a last resort.
- The intolerable conditions were caused by the employer.
- There is a clear chain of facts linking the employer’s conduct to the resignation.
It is also important to note that long delays between the intolerable conduct and the resignation can weaken a claim. Employers can significantly reduce risk by:
- Responding promptly and meaningfully to grievances.
- Training managers on appropriate conduct and conflict resolution.
- Documenting interventions when workplace issues arise.
- Ensuring that disciplinary processes are fair, transparent and not used as pressure tactics.
- Maintain open communication channels so employees feel heard before situations escalate.
Constructive dismissal cases often arise not from a single event, but from a pattern of neglect. Employees facing intolerable conditions should therefore:
- Keep detailed written records.
- Submit formal grievances where possible.
- Seek advice before resigning.
- Act promptly when conditions deteriorate.
- Ensure that resignation is the final step, not the first.
The CCMA process
Constructive dismissal cases follow a two-stage burden of proof:
- The employee must first prove that a dismissal occurred, meaning that the resignation was not voluntary.
- Only then must the employer prove that the dismissal was fair.
- If the employee cannot prove intolerability, the case ends at stage one.
Constructive dismissal disputes reveal the human cost of poor workplace management. They often involve employees who tried to cope for months before reaching a breaking point, and employers who underestimated the seriousness of internal conflict.
If you need to consult or have a question on these matters, email ann-suhet@vdm.law or phone 011 394 1606 Ext 105. Questions may also be sent to expert@conviction.co.za
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
