Constructive dismissal happens when you resign because your employer made continuing to work intolerable, and the law treats that resignation as a dismissal. Unfair dismissal is different: your employer ends your employment without a fair reason or a fair procedure. You can refer both to the CCMA, generally within 30 days.
What is constructive dismissal?
Constructive dismissal is a resignation that the Labour Relations Act (LRA) treats as a dismissal. You resign, but only because your employer's conduct left you with no reasonable choice. The CCMA decides whether that is what really happened.
The three-part test
To succeed, you must show three things:
- Intolerable conduct: your employer's behaviour made continued employment unbearable.
- Direct result: you resigned because of that conduct, not for another reason such as a better job offer.
- No reasonable alternative: you had no sensible option other than to leave.
The burden of proof is on you. A bad working relationship or a single disagreement is rarely enough.
Examples of conduct that may qualify
- Ongoing harassment, bullying or humiliation.
- Unilateral changes to your terms, such as a pay cut or a demotion, without your agreement.
- Withholding your salary or benefits.
- Ignoring serious complaints you raised through proper channels.
It counts as a dismissal, not an ordinary resignation, because your employer's conduct, not your free choice, ended the relationship. That is why you can bring the same kind of claim as an employee who was fired.
What makes a dismissal unfair?
A dismissal is unfair when your employer lacks a fair reason, did not follow a fair procedure, or acted for a reason the LRA forbids. A fair dismissal needs both a fair reason and a fair procedure.
Types of unfair dismissal
- Substantively unfair: there was no fair reason for the dismissal.
- Procedurally unfair: there may have been a good reason, but your employer did not follow a fair process, for example by skipping a hearing.
- Automatically unfair: the reason itself is prohibited, such as pregnancy or union activity.
Fair reasons for dismissal
The law recognises three broad fair reasons: misconduct, incapacity (poor performance or ill health) and operational requirements (retrenchment). Even with one of these, your employer must still follow a fair procedure.
Consequences for the employer
If the CCMA or the Labour Court finds the dismissal unfair, it can order reinstatement, re-employment or compensation. The remedies section below covers the limits.
What is the difference between automatically unfair dismissal and summary dismissal?
An automatically unfair dismissal is defined by a forbidden reason. A summary dismissal is defined by the speed: your employer dismisses you immediately, without notice, for serious misconduct. One is about why you were dismissed, the other about how quickly.
Automatically unfair dismissal
A dismissal is automatically unfair when the reason is one the LRA prohibits. Examples include discrimination, pregnancy, union membership or activity, and exercising your rights under the LRA. No procedure can make such a dismissal fair.
Summary dismissal
Summary dismissal is instant dismissal without notice, reserved for serious misconduct, such as theft or gross dishonesty. It can still be unfair if your employer skipped a fair procedure.
| Feature | Automatically unfair dismissal | Summary dismissal |
|---|---|---|
| What defines it | A prohibited reason | Dismissal without notice |
| Typical trigger | Pregnancy, union activity, discrimination | Serious misconduct |
| Always unfair? | Yes | No, it can be fair if justified and properly handled |
For example, dismissing an employee because she is pregnant is automatically unfair. Dismissing an employee on the spot after a proven theft may be fair, if there was a fair process.
How do I refer a dismissal dispute to the CCMA?
You must refer the dispute to the CCMA within 30 days of the date of dismissal, using Form 7.11. If your sector falls under a bargaining council, that council may handle the dispute instead.
Steps to follow
- Note the date your employment ended. For constructive dismissal, count from the date you resigned.
- Complete Form 7.11 with your details, your employer's details and the reason you believe the dismissal was unfair.
- Submit the form to the CCMA and send a copy to your employer.
- Attend the conciliation hearing on the date the CCMA sets.
- If conciliation fails, request arbitration or, for certain disputes, refer the matter to the Labour Court.
If you miss the deadline, you can apply for condonation and explain the delay, but the CCMA does not have to grant it.
What happens at conciliation
A CCMA commissioner helps both sides try to settle. It is informal and confidential. If you agree, the settlement is recorded in writing. If not, the commissioner issues a certificate that the dispute remains unresolved, and you can move to arbitration. Automatically unfair dismissals and some other disputes may go to the Labour Court instead. Check the CCMA website for current procedures.
What should I do if I face unfair treatment at work?
Start documenting what happens and raise it formally with your employer before you decide to resign. A clear record and a formal complaint make a later claim much stronger.
- Document everything: record dates, times, what was said or done, and who witnessed it. Keep emails and messages.
- Use the internal grievance procedure: a written Grievance Letter shows that you gave your employer the chance to fix the problem.
- Contact your union representative: if you belong to a union, ask for support early.
Resign or pursue a formal dispute?
Resigning is risky because, in a constructive dismissal claim, you must prove the conduct was intolerable. If you stay, you keep your income while the grievance runs. If you decide to leave, see How to Write a Resignation Letter in South Africa and state clearly that you are resigning because of your employer's conduct. If both sides prefer a clean exit, a Mutual Termination Agreement is another route, though it normally ends your right to dispute the termination.
What remedies and compensation can I get?
If the dismissal is found unfair, the CCMA or the Labour Court can order reinstatement, re-employment or compensation. The right outcome depends on your circumstances and what you ask for.
Possible orders
- Reinstatement: you return to your old job on the same terms.
- Re-employment: you return to a job on terms the commissioner or judge sets.
- Compensation: a payment instead of returning to work.
How much compensation?
Compensation for an ordinary unfair dismissal is capped at 12 months' remuneration. For an automatically unfair dismissal, the cap is 24 months. The amount awarded is usually lower than the cap and depends on the facts.
Severance pay in retrenchments
If you are dismissed for operational requirements, you may be entitled to severance pay even when the retrenchment is fair. Read How Does Retrenchment Work Under Section 189 of the LRA? for the process, and use the South Africa Severance Pay Calculator to estimate what you are owed.
Next step
Write down the key dates and events now, and check how many days remain before the 30-day deadline. If you are still employed and facing intolerable treatment, put your complaint in writing with a Grievance Letter before you decide whether to resign.
