What the court said

Constructive dismissal. When resignation is not a choice.

Labour Month serves as an important reminder that the constitutional right to fair labour practices is not merely theoretical but has real consequences for employees across South Africa. One of the most frequently misunderstood areas of labour law is constructive dismissal, which arises when an employee resigns but does so because continued employment has effectively become intolerable. In such cases, the law may treat the resignation as a dismissal by the employer.

The Constitutional Court's decision in Maleka v Boyce N.O. and Others N.O. (2026) ZACC 7 provides valuable guidance on how constructive dismissal claims are assessed and clarifies the high threshold employees must meet to succeed with such claims.

The facts of the case

The employee was employed as a senior IT Director. During a corporate restructuring, his employer altered his reporting line. The employee resigned and argued that the change was implemented without consultation, it diminished his status, undermined his authority, and rendered his continued employment intolerable.

He referred the matter to the Commission for Conciliation, Mediation and Arbitration (“CCMA”), alleging constructive dismissal in terms of section 186(1)(e) of the Labour Relations Act 66 of 1995 (“LRA”) stating that amongst other things, a dismissal can also include where “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.”

The CCMA held that the employee's resignation did not pass the test for constructive dismissal and he failed to establish the existence of a dismissal. The Labour Court agreed with the CCMA's decision and so did the Labour Appeal Court.

Still not satisfied, the matter went to the Constitutional Court to establish that the employee was indeed constructively dismissed. The Constitutional Court reaffirmed that constructive dismissal is not concerned with workplace dissatisfaction, disappointment, or perceived unfairness. It must be established objectively. The decisive question is whether working conditions became objectively intolerable due to the employer's conduct.

To establish constructive dismissal, an employee must prove that:

>  they resigned or terminated the employment contract;

>  the termination was not voluntary, but because continued employment has become intolerable for the employee; and

>  the employer created and was responsible for the intolerable working conditions.

The Constitutional Court confirmed that “All three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established.”

This assessment is an objective one and employment must be more than uncomfortable or unpleasant. It must be so unbearable that a reasonable person in the employee's position would have felt compelled to resign.

The Constitutional Court found that the facts did not support a finding of objective intolerability. The employee's remuneration, job title, core responsibilities, and position on the executive committee remained unchanged. It was held that a change in reporting lines, on its own, does not amount to a demotion or create intolerable working conditions.

The employee's reliance on anticipated future harm was rejected because constructive dismissal cannot be founded on speculation about what might occur. The intolerable conditions must already exist at the time of resignation. Additionally, significant weight was given to the employee's failure to pursue available remedies. He did not lodge a formal grievance or assert an unfair labour practice claim, such as a demotion dispute. While it was acknowledged that employees are not always required to exhaust internal processes, failing to do so without a sound justification undermines a constructive dismissal claim.

Finally, the Constitutional Court held that resignation must be a measure of last resort. An employee must show that there were no reasonable alternatives available and that resignation was unavoidable. In this case, it was found that the employee acted prematurely.

Key principles highlighted by the judgment

This case underscores that intolerability is a demanding legal standard. Objective facts carry greater weight than subjective perceptions, and employees are expected to act reasonably by exploring other available options before deciding to resign or terminate their employment. Ordinary workplace conflict or dissatisfaction, even at a senior level, is insufficient to establish constructive dismissal.

Employees are entitled to a workplace free from unfair labour practices and have the right to be consulted on significant changes to their employment conditions. Where disputes arise, employees are expected to make use of internal grievance mechanisms, the CCMA, or appropriate court processes before resigning, unless doing so would clearly be futile.

Before resigning, employees should carefully consider whether concerns have been formally raised, whether the employer has been allowed to address the issue, and whether the situation is genuinely intolerable rather than merely difficult. Premature resignation can significantly weaken a constructive dismissal claim.

This case confirms that constructive dismissal is not easily established. While the law protects employees from abusive or intolerable conduct, it also requires them to act sensibly and exhaust reasonable alternatives. Simply put, not every difficult job situation amounts to constructive dismissal, but every constructive dismissal arises from circumstances that have crossed the line from difficult to truly intolerable.

Did you know…Constructive dismissal requires employment to be objectively intolerable, so that the employee has no other option but to terminate their employment contract.