Constructive dismissal was incorporated into South African labour law in the 1980s and later codified in the Labour Relations Act 66 of 1995 (“LRA”). In terms of section 186(1)(e) of the LRA, an employee may resign, whether with or without notice, and claim unfair dismissal on the basis that their continued employment had become intolerable. Although the concept can be difficult to apply in practice, the Constitutional Court has clarified its meaning and reaffirmed its role within our law.

Courts have consistently held that “intolerable” refers to conduct or working conditions that are beyond what an employee could reasonably be expected to endure, conditions that are insufferable or wholly unbearable. The threshold is therefore intentionally high. Not every instance of unfair, unpleasant, or unreasonable conduct will suffice.

Importantly, the test is objective. It does not depend on the subjective feelings of an aggrieved employee but rather on whether a reasonable person, confronted with the same circumstances, would conclude that the working environment had become so toxic that continued employment was impossible.

For a constructive dismissal to be established, three requirements must be met:

1. The employee must have terminated the employment contract. This requires a clear and unequivocal intention, expressed through words or conduct, not to continue the employment relationship.
2. The reason for the resignation must be that employment had become intolerable for the employee.
3. The intolerability must have been caused by the employer. There must be a causal link between the employer’s conduct and the employee’s decision to resign.

The second and third requirements are often the most contentious. The employee must show that the employer’s conduct, or the conditions of employment, rendered continued working objectively intolerable and that resignation was the only reasonable option left. If any one of the three requirements is absent, constructive dismissal cannot be established.

This framework was recently applied in Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026), where an employee resigned after changes to his reporting lines following a business restructuring. The employee viewed the change as a demotion that pushed him out of his executive role. He referred an unfair dismissal dispute to the CCMA but did not file an unfair labour practice claim nor utilise the company’s internal grievance processes.

At the CCMA, the Commissioner found that the employee had not been dismissed. His resistance to the reporting-line change was described as “an ego thing,” far removed from a demotion. Both the Labour Court and the Labour Appeal Court upheld the award. When the employee approached the Constitutional Court, it dismissed his condonation application, citing poor prospects of success on the merits of his claim for constructive dismissal.

The court emphasised that:

• the employee suffered no reduction in title, responsibilities, remuneration, or contractual position after the acquisition;
• the resignation appeared to be based on anticipated rather than existing intolerability; and internal processes were available but not utilised.

The Court reiterated that section 186(1)(e) of the LRA does not apply to future or speculative circumstances that might, at some later point, become intolerable. Allowing such claims would stretch “the bounds of intolerability too far”.

Finally, the Court stressed that employees are ordinarily expected to exhaust internal grievance procedures. If such processes fail to resolve the issue, only then may employees pursue external remedies such as the CCMA or relevant labour courts. Hurt feelings, perceived slights, or instances of unfair treatment do not automatically entitle an employee to resign and allege constructive dismissal without first seeking resolution.


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