Have you been forced to quit your job because of unbearable working conditions? If so, you may be a victim of constructive dismissal. Constructive dismissal occurs when an employer’s actions or omissions create such hostile conditions that employees feel they have no choice but to resign. Although the employee formally resigns, the law treats it as a dismissal by the employer. This article aims to provide an overview of constructive dismissal, explaining what it means and outlining the key elements that must be established when pursuing a constructive dismissal claim at the CCMA.

What is Constructive Dismissal?

Constructive dismissal is a situation where the employer’s conduct, even though they did not expressly terminate the employment relationship, makes it impossible for the employee to continue working. The employee is left with no option but to resign due to the employer’s unreasonable actions or omissions. In terms of the Labour Relations Act, constructive dismissal is considered a form of unfair dismissal.

Requirements for Constructive Dismissal

To establish a claim of constructive dismissal, three requirements must be met:

  1. Termination of the employment contract: The employee must have terminated their contract of employment.
  2. Intolerable working conditions: The reason for termination must be that continued employment has become intolerable for the employee.
  3. Employer responsibility: The employer must have made continuous employment intolerable.

For a constructive dismissal claim to succeed, all three requirements must be present. If any one of them is absent, it cannot be considered a constructive dismissal.

Elements of Constructive Dismissal

  1. Intolerable Working Conditions

To prove constructive dismissal, the employee needs to show that the working conditions created by the employer were so intolerable that a reasonable person in their position would find it impossible to continue working. This can include harassment, bullying, discrimination, or unsafe working conditions. It is crucial to demonstrate that the employee resigned because of the employer’s conduct, which made continued employment intolerable.

  1. Employer’s Breach of Contract

The employee must provide evidence that the employer breached a fundamental term of the employment contract. This breach can result from various actions or omissions, such as unilaterally changing terms and conditions, failing to address grievances, implementing unfair disciplinary procedures, or unjustified demotions.

  1. Employee’s Resignation as a Result

The employee must establish a direct causal link between the employer’s breach of contract or the intolerable working conditions and their decision to resign. The resignation must be a reasonable response to the employer’s conduct.

  1. Connection Between Breach and Resignation

It is essential to demonstrate a clear link between the employer’s breach of contract, the intolerable working conditions, and the employee’s decision to resign. The employee should be able to prove that the employer’s actions or omissions directly led to their resignation rather than any unrelated factors.

CCMA Proceedings and Remedies

To pursue a constructive dismissal claim, the employee must lodge a formal complaint with the CCMA within 30 days of the alleged constructive dismissal. The CCMA will attempt to facilitate conciliation or mediation between the parties to find a resolution. If the dispute remains unresolved, it may proceed to arbitration, where an independent commissioner will make a binding decision.

Burden of Proof

In constructive dismissal cases, the burden of proof rests with the employee. They must present sufficient evidence, on a balance of probabilities, to establish that constructive dismissal occurred. This evidence should support each element of constructive dismissal, including intolerable working conditions, the employer’s breach of contract, resignation, and the causal connection between the breach and resignation. Corroborating evidence, where possible, can strengthen the claim.

If the CCMA finds in favor of the employee, they may be entitled to various remedies, such as compensation or reinstatement to their former position.


Constructive dismissal cases require a thorough understanding of the legal elements and the CCMA proceedings. To succeed in a constructive dismissal claim, employees must demonstrate intolerable working conditions, the employer’s breach of contract, the employee’s resignation, and the causal connection between the breach and resignation. Both employees and employers need to grasp the legal aspects and burden of proof involved in constructive dismissal cases. 

Seeking specific legal advice tailored to your circumstances is highly recommended to navigate constructive dismissal claims’ complexities successfully.

For any assistance, contact an attorney at SchoemanLaw.