Constructive dismissal is a concept in employment law that arises when an employee resigns due to the employer’s behaviour, which makes the working conditions intolerable. Unlike traditional dismissal, where the employer terminates the employment relationship, constructive dismissal occurs when the employee feels compelled to resign as a result of a fundamental breach of the employment contract by the employer.

Legal Framework:

Constructive dismissal is primarily governed by the Labour Relations Act, 66 of 1995 (LRA). The LRA provides protection for employees against unfair labour practices, including constructive dismissal situations. According to Section 186(1)(e) of the LRA, constructive dismissal is defined as the termination of the employment relationship by the employee with or without notice because the employer made continued employment intolerable.

Key Elements of Constructive Dismissal:

  1. Breach of Contract: For a claim of constructive dismissal to be successful, the employee must demonstrate that the employer breached a fundamental term of the employment contract. This breach could be a single serious incident or a series of incidents that cumulatively create an intolerable working environment.
  2. Intolerable Working Conditions: The breach must result in working conditions that are so intolerable that the employee has no reasonable alternative but to resign. The test is objective, focusing on whether a reasonable person in the employee’s position would find the working conditions unbearable.
  3. Employee’s Reaction: The employee must show that their resignation was a reasonable response to the intolerable working conditions. It is crucial to establish that resignation was not a voluntary choice but rather a reaction to the employer’s conduct.
  4. Notification to the Employer: In many cases, employees are required to notify their employer of the intolerable conditions and give the employer an opportunity to remedy the situation before resigning. This is known as the duty to mitigate.

Proving Constructive Dismissal:

To successfully prove constructive dismissal, employees often need to present evidence such as written communication, witness statements, or other documentation that supports their claim. It is advisable for employees to keep a record of incidents and communicate their concerns to the employer in writing.


If a claim of constructive dismissal is successful, remedies may include compensation for unfair dismissal or reinstatement. The specific remedy will depend on the circumstances of the case and the relief sought by the employee.


Constructive dismissal is a complex aspect of employment law that requires careful consideration of the circumstances leading to the resignation. Employees facing intolerable working conditions should seek legal advice to understand their rights and options before taking any action.

Employers, on the other hand, should be aware of their obligations to provide a fair and respectful working environment to avoid potential legal consequences.

For professional legal advice, contact Tracey Mouton at Goldberg & de Villiers Inc. on 041 501-9800.


© Copyright - Goldberg & de Villiers Inc.