10/09/2026
๐๐ผ๐ป๐๐๐ฟ๐๐ฐ๐๐ถ๐๐ฒ ๐๐ถ๐๐บ๐ถ๐๐๐ฎ๐น ๐๐ ๐ ๐๐ถ๐๐บ๐ถ๐๐๐ฎ๐น ๐๐ป ๐๐ถ๐๐ด๐๐ถ๐๐ฒโ๐๐๐ ๐ฅ๐ฒ๐๐ถ๐ด๐ป๐ฎ๐๐ถ๐ผ๐ป ๐ ๐๐๐ ๐๐น๐๐ฎ๐๐ ๐๐ฒ ๐ง๐ต๐ฒ ๐๐ฎ๐๐ ๐ฅ๐ฒ๐๐ผ๐ฟ๐.
โ๐๐ฉโ๐จ ๐ฃ๐ค๐ฉ ๐๐ช๐จ๐ฉ ๐ฆ๐ช๐๐ฉ๐ฉ๐๐ฃ๐ ๐๐๐๐๐ช๐จ๐ ๐ฎ๐ค๐ชโ๐ง๐ ๐ช๐ฃ๐๐๐ฅ๐ฅ๐ฎ. ๐๐ฉโ๐จ ๐ฌ๐๐๐ฃ ๐ฎ๐ค๐ช๐ง ๐๐ข๐ฅ๐ก๐ค๐ฎ๐๐ง ๐ข๐๐ ๐๐จ ๐ฎ๐ค๐ช๐ง ๐๐ค๐ ๐จ๐ค ๐๐ฃ๐ฉ๐ค๐ก๐๐ง๐๐๐ก๐ ๐ฉ๐๐๐ฉ ๐ฎ๐ค๐ชโ๐ง๐ ๐๐ค๐ง๐๐๐ ๐ฉ๐ค ๐ง๐๐จ๐๐๐ฃโ๐ ๐๐๐จ๐ข๐๐จ๐จ๐๐ก ๐๐ฃ ๐๐๐จ๐๐ช๐๐จ๐.โ - ๐ผ๐จ๐ก๐๐ข ๐๐ค๐ค๐ก๐ก๐ (๐๐๐๐ค๐ช๐ง ๐๐๐ฌ ๐ผ๐ฉ๐ฉ๐ค๐ง๐ฃ๐๐ฎ)
๐๐ณ๐ต๐ช๐ค๐ญ๐ฆ ๐ฃ๐บ ๐๐ญ๐ช๐ง๐ง ๐๐ต๐ด๐ฐ๐ฏ๐จ๐ธ๐ข๐ฏ๐ข (๐๐ฆ๐ฏ๐ช๐ฐ๐ณ ๐๐ข๐ฃ๐ฐ๐ถ๐ณ ๐๐ฅ๐ท๐ช๐ด๐ฐ๐ณ)
๐๐ป๐๐ฟ๐ผ๐ฑ๐๐ฐ๐๐ถ๐ผ๐ป
You arrive at work and your salary has been cut without agreement; your tools are taken away; your manager makes your life unbearable. You resign because you cannot continue, but did you really resign; or were you constructively dismissed?
You may think that you have no remedy after resigning in these circumstances. That is not true.
The law recognises that an employer can make working conditions so intolerable that you are forced to leave. When that happens, the law says you were dismissed, even though you signed the resignation letter.
๐๐ฒ๐ด๐ถ๐๐น๐ฎ๐๐ถ๐ผ๐ป
Our first authority comes from Section 186(1)(e) of the Labour Relations Act 66 of 1995 (The LRA). This section communicates a simple idea: ๐ช๐ง ๐ข๐ฏ ๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฆ๐ฆ ๐ณ๐ฆ๐ด๐ช๐จ๐ฏ๐ด ๐ฃ๐ฆ๐ค๐ข๐ถ๐ด๐ฆ ๐ต๐ฉ๐ฆ ๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฆ๐ณ ๐ฎ๐ข๐ฅ๐ฆ ๐ค๐ฐ๐ฏ๐ต๐ช๐ฏ๐ถ๐ฆ๐ฅ ๐ฆ๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฎ๐ฆ๐ฏ๐ต ๐ช๐ฏ๐ต๐ฐ๐ญ๐ฆ๐ณ๐ข๐ฃ๐ญ๐ฆ, ๐ต๐ฉ๐ข๐ต ๐ณ๐ฆ๐ด๐ช๐จ๐ฏ๐ข๐ต๐ช๐ฐ๐ฏ ๐ช๐ด ๐ญ๐ฆ๐จ๐ข๐ญ๐ญ๐บ ๐ต๐ณ๐ฆ๐ข๐ต๐ฆ๐ฅ ๐ข๐ด ๐ข ๐ฅ๐ช๐ด๐ฎ๐ช๐ด๐ด๐ข๐ญ. ๐๐ฉ๐ฆ ๐ง๐ฐ๐ค๐ถ๐ด ๐ช๐ด ๐ฏ๐ฐ๐ต ๐ฐ๐ฏ ๐ธ๐ฉ๐ฐ ๐ฆ๐ฏ๐ฅ๐ฆ๐ฅ ๐ต๐ฉ๐ฆ ๐ค๐ฐ๐ฏ๐ต๐ณ๐ข๐ค๐ต, ๐ฃ๐ถ๐ต ๐ฐ๐ฏ ๐ธ๐ฉ๐บ ๐ช๐ต ๐ฆ๐ฏ๐ฅ๐ฆ๐ฅ.
A second important provision is Section 192 of the LRA that speaks to the burden of proof in dismissal disputes. First, you as the employee must prove that you were dismissed. In constructive dismissal, that means you must prove that the workplace was intolerable leaving you without any other choice but to resign. Once you prove these three factors: intolerability; no other remedy; and resignation as a result, the employer must prove the dismissal was fair.
We also draw guidance from The Code of Good Practice: Dismissal, Schedule 8 (The Code). In terms of the Code, employers must act fairly and must deal with grievances properly. An employer cannot ignore your complaints and then claim you resigned voluntarily.
Finally, Section 23 of the Constitution of the Republic of South Africa, 1996 (The Constitution) guarantees everyone the right to fair labour practices. Constructive dismissal protection is part of that constitutional right. For constructive dismissals to succeed, you must show three things: you resigned soon after the problem arose; the employer made the workplace intolerable; and you had no reasonable alternative remedy but to resign.
You should have tried to raise a grievance first, where possible, to resolve the issues. Proving constructive dismissal requires a โhigh testโ. Unhappiness; a difficult boss; a single unfair instruction is simply not enough. It must be ๐ฐ๐ฃ๐ซ๐ฆ๐ค๐ต๐ช๐ท๐ฆ๐ญ๐บ ๐ช๐ฏ๐ต๐ฐ๐ญ๐ฆ๐ณ๐ข๐ฃ๐ญ๐ฆ, meaning any reasonable person in your position would have resigned. Common examples we see in the motor industry include unilateral pay cuts (like reducing a driver from R12 000 to R8 445), demotion from driver to tyre fitter without process, non-payment of overtime or commission, sexual harassment where the employer does nothing, and being transferred to a degrading position.
๐๐ฎ๐๐ฒ ๐๐ฎ๐๐
The Courts have set a strict test to prevent abuse and protect members where the employer truly acts unfairly. In ๐๐ฐ๐ฐ๐ด๐ต๐ฆ ๐ท ๐๐ณ๐ข๐ฏ๐ด๐ฏ๐ฆ๐ต ๐๐ต๐ฅ (1995) 16 ILJ 629 (LAC), the Labour Appeal Court made it clear that intolerability must be very high. The Court said the employer must have acted in a manner that makes it impossible for the employee to continue working.
In ๐๐ถ๐ณ๐ณ๐ข๐บ ๐ท ๐๐ช๐ฏ๐ช๐ด๐ต๐ฆ๐ณ ๐ฐ๐ง ๐๐ฆ๐ง๐ฆ๐ฏ๐ค๐ฆ (2008) 29 ILJ 1369 (SCA), the Supreme Court of Appeal dealt with a senior officer who was humiliated and undermined. The Court confirmed that the test for intolerability is objective, and that the employee does not need to show that the employer intended to force him to resign. It is enough that the employer's conduct made work unbearable.
In ๐๐ต๐ณ๐ข๐ต๐ฆ๐จ๐ช๐ค ๐๐ช๐ฒ๐ถ๐ฐ๐ณ ๐๐ฆ๐ณ๐ท๐ช๐ค๐ฆ๐ด ๐ท ๐๐ท๐ถ๐ฎ๐ฃ๐ช ๐๐ & ๐๐ต๐ฉ๐ฆ๐ณ๐ด (2009) 30 ILJ 1526 (CC), the Constitutional Court gave us the most important principle. The Court said that if an employer makes a resignation inevitable, it is a dismissal. In that case, the employee was required to work with stock that was short and was threatened with dismissal if he did not accept liability. He resigned and the Court found that this was indeed constructive dismissal.
In ๐๐ฎ๐ช๐ต๐ฉ๐ฌ๐ญ๐ช๐ฏ๐ฆ ๐๐ฆ๐ฆ๐ค๐ฉ๐ข๐ฎ (๐๐ต๐บ) ๐๐ต๐ฅ ๐ท ๐๐๐๐ & ๐๐ต๐ฉ๐ฆ๐ณ๐ด (2000) 21 ILJ 988 (LC), the Labour Court warned that employees must exhaust internal remedies first. If you have a grievance procedure, use it. Resigning immediately without giving the employer a chance to fix the problem will weaken your case, unless the situation is so serious that you cannot be expected to stay another day.
In the words of the previous MIBCO DRC Director, Jaco Malan, โ๐บ๐ฐ๐ถ ๐ฎ๐ถ๐ด๐ต ๐ด๐ฉ๐ฐ๐ธ ๐ต๐ฉ๐ข๐ต ๐บ๐ฐ๐ถ ๐ธ๐ฐ๐ณ๐ฌ๐ฆ๐ฅ ๐ธ๐ช๐ต๐ฉ ๐ต๐ฉ๐ฆ ๐ฅ๐ฆ๐ท๐ช๐ญ, ๐บ๐ฐ๐ถโ๐ท๐ฆ ๐ฑ๐ถ๐ต ๐ต๐ฉ๐ฆ ๐ฅ๐ฆ๐ท๐ช๐ญ ๐ฐ๐ฏ ๐ต๐ฆ๐ณ๐ฎ๐ด, ๐ฃ๐ถ๐ต ๐ฏ๐ฐ๐ต๐ฉ๐ช๐ฏ๐จ ๐ธ๐ฐ๐ณ๐ฌ๐ฆ๐ฅ ๐ต๐ฐ ๐ฌ๐ฆ๐ฆ๐ฑ ๐ต๐ฉ๐ฆ ๐ฅ๐ฆ๐ท๐ช๐ญโ๐ด ๐ข๐ค๐ต๐ช๐ฐ๐ฏ๐ด ๐ข๐ต ๐ฃ๐ข๐บโ.
๐๐ผ๐ป๐ฐ๐น๐๐๐ถ๐ผ๐ป
Constructive dismissal is not an easy case to win, and it should never be your first option.
Should you find yourself in an intolerable work environment, you must follow the following process in an attempt to resolve the issue: lodge a formal grievance in writing; contact MISA; keep record and evidence of the conduct that renders the workplace intolerable i.e. payslips, letters, and messages.
The law requires you to resign within a reasonable time after the intolerable act, and you must be able to show you had no other choice. If your employer has cut your salary, demoted you, or made your work life unbearable, you have not just resigned - you may have been dismissed. And where there is a dismissal, there is a right to refer an unfair dismissal dispute to the MIBCO DRC within 30 days of the date of resignation. โBUT do not simply walk out before contacting us!
๐ฅ๐ฒ๐บ๐ฒ๐บ๐ฏ๐ฒ๐ฟ, ๐ ๐๐ฆ๐ ๐ถ๐ ๐ท๐๐๐ ๐ฎ ๐ฝ๐ต๐ผ๐ป๐ฒ ๐ฐ๐ฎ๐น๐น ๐ฎ๐๐ฎ๐!
