Constructive Dismissal at the CCMA: Evidence and Steps

Key takeaways

• Constructive dismissal is a form of dismissal under section 186(1)(e) of South Africa's Labour Relations Act. It may exist when an employee ends the employment contract, with or without notice, because the employer made continued employment intolerable. A difficult manager, unfair incident, pressured conversation or resignation request does not establish it automatically.
• The employee must first prove that a dismissal occurred: the employee ended employment, continued employment had become objectively intolerable, the employer created that condition, and the condition caused the resignation. Only if that threshold is met does the separate question of fairness arise. The Constitutional Court's February 2026 decision in Maleka v Boyce N.O. and Others confirms that the test is objective, fact-intensive and demanding.
• If employment has not ended, do not assume that resigning is the required next step. Preserve the proposal, ultimatum or process, identify immediate safety and deadline issues, and get advice before signing a resignation, mutual-separation agreement or settlement where possible. If employment has ended, identify the correct employer and forum immediately. The CCMA's current information says a dismissal referral is ordinarily made on LRA Form 7.11 within 30 days of termination; a bargaining council may have jurisdiction instead, and a late referral needs condonation.

1. Confirm what actually ended the employment relationship

Start with the termination document and sequence, not the label used in conversation. Record whether employment is still active, whether the employer issued a dismissal decision, whether the employee resigned, whether notice is being worked, and whether a separation agreement was signed.

The main classifications are different:

• No termination yet: an employer may have proposed resignation, issued an ultimatum or started a disciplinary, performance, incapacity or restructuring process, but employment continues.
• Actual dismissal: the employer ended employment. The fairness and referral analysis concerns that dismissal, even if resignation had been discussed earlier.
• Resignation: the employee chose to end the contract for reasons that do not meet section 186(1)(e).
• Constructive dismissal: the employee ended employment because employer-created conditions made continued employment objectively intolerable.
• Mutual separation: the parties concluded an agreement to end employment, subject to any valid challenge to that agreement.

Do not convert an employer's suggestion into a completed dismissal without checking what followed. Equally, do not manufacture a constructive-dismissal theory if the employer had already made the dismissal decision. Preserve the employer's words, the employee's response, alternatives offered, the document signed, delivery proof, employer acceptance and the asserted effective date.

A resignation “instead of dismissal” can arise during several processes. The employer may be proposing settlement, offering an alternative to a pending hearing, communicating a predetermined decision, or applying improper pressure. The legal classification depends on the complete evidence.

2. Apply the section 186(1)(e) test in sequence

The statutory definition requires an employee to have terminated employment because the employer made continued employment intolerable. The constructive-dismissal glossary gives the short definition; a CCMA case needs the following questions answered with facts and source records.

Did the employee terminate the contract?

Identify the resignation or other employee-initiated termination, whether it was with or without notice, when it was delivered, and when the employment relationship ended. A threat to resign, an unsigned draft or an employer-issued dismissal is not the same event.

Was the actual reason the employer-created condition?

Write the causal link in one sentence: “I ended employment on [date] because [identified employer action or omission] had made continued work intolerable in the following way.” Then test that statement against contemporaneous emails, complaints, meeting notes, resignation wording and any other possible reason such as a planned move, new job, retirement, pay negotiation or personal decision.

Had continued employment become objectively intolerable?

This is more than inconvenience, dissatisfaction, embarrassment, stress or an unpleasant relationship. The decision-maker considers the employer's conduct and its cumulative effect objectively. A sufficiently serious single event may matter, but many cases concern a pattern. The CCMA's 2025 information sheet stresses that the threshold is high and that even a contract breach or salary deduction will not necessarily establish intolerability where other effective remedies remain available.

Did the employer create the intolerable condition?

Identify the act or omission, the responsible person acting within the employment relationship, what the employer knew, what opportunity it had to address the problem, and its response. A condition caused by an unrelated third party or personal circumstances will not satisfy this element merely because it affected work.

The employee bears the initial onus under section 192(1) to establish the existence of a dismissal. If no constructive dismissal is proved, the unfair-dismissal inquiry does not proceed on that theory. If a dismissal is established, section 192(2) places the fairness issue on the employer. Keep those stages separate.

3. Use Maleka as a current warning against shortcuts

In Maleka v Boyce N.O. and Others [2026] ZACC 7, the Constitutional Court considered a resignation following a proposed reporting-line change. The majority held that the employee had not proved constructive dismissal. It treated the objective threshold, the actual working conditions, the reason for resignation and the failure to use suitable internal remedies as important.

The judgment does not create a list of workplace events that always succeed or fail. Its practical controls are more useful:

• assess the conditions that existed when the employee resigned, not only feared future events;
• distinguish a hurtful, unfair or unwelcome decision from objectively intolerable continued employment;
• examine the employer's conduct as a whole and the real reason for resignation;
• preserve evidence of internal options, whether they were used, and why they were adequate, unsafe, futile or unavailable; and
• do not collapse proof of dismissal into the later fairness question.

Internal remedies are not a mechanical box. The majority emphasised their importance in the facts before it, while the CCMA's current information recognises that internal resolution may not be reasonable in some situations, including a small workplace where the person accused of serious harassment is the employer. The evidence should explain the actual route, not assert that a grievance is always compulsory or always pointless.

Earlier Constitutional Court authority in Strategic Liquor Services v Mvumbi N.O. and Others confirms that the test does not require a literal absence of every choice; the focus remains whether the employer made continued employment intolerable. That does not lower the threshold or make resignation the first response to every grievance.

4. Do not resign while a different live process is ignored

If employment continues, map every current employer process and deadline:

• disciplinary allegations, response date, hearing and appeal;
• performance plan, review dates and support offered;
• incapacity or health process and medical information lawfully provided;
• grievance, harassment or safety report and escalation route;
• suspension terms and response opportunity;
• unilateral change, transfer, reporting-line or role proposal;
• restructuring, retrenchment or consultation process; and
• proposed resignation, settlement or mutual-separation deadline.

Participating in or challenging one of these processes may preserve a route that resignation would end or complicate. A procedural complaint within an active hearing does not by itself prove that continued employment is intolerable. Ask for the employer's position and deadline in writing where safe, preserve the notices and responses, and obtain advice on the immediate step.

Treat a same-day demand to sign as urgent, but urgency does not mean the document must be signed. Read the complete terms, including release, confidentiality, non-disparagement, repayment, restraint, tax, reference, withdrawal and payment provisions. Record whether independent advice was offered and whether any threat or alternative accompanied the proposal.

Immediate violence, sexual harassment, a medical crisis or another safety threat calls for an appropriate emergency, medical, workplace-safety or protective response. Do not wait for an ordinary labour consultation before taking necessary safety action.

5. Keep overlapping labour disputes separate

Pressure to resign can coexist with other legal issues. One constructive-dismissal referral should not become a container that hides distinct claims, forums or dates.

Screen separately for:

• an actual unfair or automatically unfair dismissal;
• an unfair labour practice while employment was active;
• unfair discrimination or harassment under the Employment Equity Act;
• an occupational detriment following a protected disclosure;
• unpaid remuneration, leave, notice pay, deductions or a certificate of service under basic-conditions legislation;
• breach of contract or enforcement of a separation agreement; and
• a bargaining-council, collective-agreement or sector-specific route.

The unfair-dismissal glossary helps distinguish the broader category from section 186(1)(e). Each issue needs a row recording the alleged act, legal characterisation to test, source documents, forum, trigger date, proposed due date and advice required.

Do not assume the CCMA is the correct body because the dispute concerns employment. Identify the employer's legal entity, workplace, sector, collective agreement and bargaining-council coverage. A group name, manager's name or trading style may not identify the correct respondent.

6. Build evidence around the elements

The strongest preparation pack is organised by question rather than volume. The dismissal evidence pack can provide structure, but the employee should keep complete originals and a neutral index.

Employment and identity documents

Preserve the contract, amendments, job description, policies, grievance and disciplinary procedures, collective agreement, payslips, employer registration details and records showing the workplace and sector.

Employer-conduct evidence

For every alleged intolerable event or omission, record the date and time, people present, words or conduct, source file, effect on continued work, complaint made and employer response. Include relevant changes to duties, reporting line, location, hours, pay, access, treatment or safety. Separate direct observation from recollection, inference and legal conclusion.

Keep complete email and message threads, attachments, meeting invitations, lawfully held recordings and contemporaneous notes. Cropped screenshots, rewritten excerpts and isolated voice notes can conceal context.

Internal-remedy and alternative evidence

Collect grievances, escalation messages, acknowledgements, investigation steps, outcomes, appeals and follow-ups. If an internal route was not used, record why it was unavailable, unsafe, futile, controlled by the alleged wrongdoer or incapable of addressing the immediate risk. Preserve facts that may contradict that explanation as well.

Employer-process evidence

Include performance plans, warnings, disciplinary notices, evidence disclosed, employee responses, hearing records, suspension, incapacity, restructuring or retrenchment material. Do not exclude an unfavourable document or overwrite a working copy.

Termination evidence

Keep the sent resignation letter, earlier drafts clearly marked as drafts, delivery proof, notice-period communication, employer response, counter-proposal, exit documents, last-working-day evidence and certificate of service. If a separation agreement exists, retain the complete signed and draft versions and payment records.

Witnesses and provenance

List each witness's role, direct knowledge, event and lawful contact details without coordinating accounts. For every file, record document date, event date, author, recipient, source system, original or working-copy status, relevance and confidentiality.

7. Preserve records lawfully

Work-system access can end quickly, so preserve relevant personal employment records lawfully while access remains available. Do not bulk-copy customer data, trade secrets, privileged communications, complete mailboxes or records the employee is not authorised to possess.

Keep originals unchanged. Do not delete, edit, backdate or overwrite messages, notes, resignation drafts, payroll records or employer documents. Annotate a separate working copy. Mark a missing document, likely custodian, request and response instead of reconstructing it.

Avoid public accusations or posting employer records, medical material or recordings as leverage. Public disclosure can create confidentiality, privacy, reputational and evidential complications. Use a verified union, adviser or lawyer's secure channel and redact unrelated third-party information from working bundles.

8. Create the termination and deadline register

Record dates separately rather than choosing one convenient “dismissal date”:

• the pressure, proposal or ultimatum;
• resignation delivery;
• notice start and end;
• employer acceptance or response;
• final working day;
• employer dismissal decision, if any;
• appeal or internal final decision;
• grievance and outcome;
• referral and service;
• CCMA or bargaining-council acknowledgement; and
• every later notice or hearing.

The CCMA's 2025 constructive-dismissal and conciliation information states that an employee may refer a dismissal dispute using LRA Form 7.11 within 30 days of termination. Its condonation guidance says that an appeal decision can affect the calculation after a dismissal. These public rules are urgent flags, not a substitute for a fact-specific calculation where resignation, notice, appeal or classification is disputed.

If the period is close, do not wait for a perfect file or a lawyer appointment. Obtain forum and date advice using the employment status, termination document, core chronology, employer identity and missing-items list already available.

If the referral may be late, prepare condonation immediately. The CCMA identifies the degree of lateness, explanation, prospects of success, prejudice and other relevant circumstances. Account for the whole delay with dates and evidence. Condonation is discretionary; an underlying allegation that sounds serious does not guarantee it.

The condonation glossary explains the concept at a high level, but the application must still address the actual delay and merits without predicting the ruling.

9. Prepare and serve the referral accurately

Before filing, confirm:

1. employment has ended and the dispute is properly classified;
2. the legal employer and service details are correct;
3. the sector and collective agreement do not place the matter with a bargaining council;
4. the trigger date and proposed deadline have been checked;
5. the current LRA Form 7.11 or verified online process is being used;
6. concise facts address employee termination, employer-created intolerability and causation;
7. related disputes and dates have been recorded separately;
8. the requested outcome is stated without promising a result; and
9. condonation accompanies a late referral where required.

The LRA Form 7.11 glossary explains the form at a high level. Use the current CCMA form or online platform, not a generic complaint letter or an old saved template.

Serve the referral on the other party by an accepted method and retain proof. Keep the exact submitted copy, attachments, filing acknowledgement, date, case number and CCMA or council communications. Update contact details and monitor every notice; successful online submission does not complete case administration.

Create a referral audit table with issue, respondent, forum, form, trigger, due date, service method, service proof, filing acknowledgement, condonation status, next event and responsible person. The broader CCMA checklist can support the file.

10. Understand conciliation, con-arb and arbitration

The CCMA glossary explains the institution. After a valid referral, conciliation is a confidential attempt to resolve the dispute; the conciliating commissioner does not decide the merits merely because the parties disagree. Keep the notice, attendance instructions, authority to settle, calculation and proposed terms ready.

If the dispute remains unresolved, constructive-dismissal disputes can proceed to arbitration under the CCMA route, subject to jurisdiction and the required next step. The CCMA's current FAQ lists constructive dismissal among disputes that go to arbitration after unsuccessful conciliation. A con-arb process may place arbitration immediately after failed conciliation when the legislation, rules, notice and any permitted objection allow it.

Do not assume legal representation, postponement, interpreter arrangements, accessibility measures, venue changes or remote attendance will happen automatically. Read the current notice and rules, make any required request in time and preserve the response.

At arbitration, the employee must prove the dismissal threshold with admissible evidence and witnesses. The employer may dispute the reason for resignation, intolerability, causation, its knowledge, available alternatives and the authenticity or context of records. Prepare the evidence around each element rather than delivering an unindexed document dump.

11. Treat remedies as outcomes to prove, not promises

If constructive dismissal and unfairness are established, the remedies arise under the LRA's unfair-dismissal framework. They can include reinstatement, re-employment or compensation, subject to the statutory requirements and the facts. The CCMA's current information sheet describes compensation of up to 12 months' remuneration for an unfair constructive dismissal.

That ceiling is not a standard award. Remedy depends on the finding, evidence, statutory discretion and circumstances. A resignation does not entitle the employee to a severance package, full future earnings or a guaranteed settlement. Keep a remuneration and loss schedule with payslips, benefits, leave, unemployment period and later earnings, but separate arithmetic from entitlement.

Settlement terms can affect payment, tax, reference wording, confidentiality, non-disparagement, withdrawal, waiver and enforcement. Record what is included, what remains open, when payment is due and what happens on breach before signing.

12. Use four urgency lanes

Immediate safety or health

Act through suitable emergency, medical, harassment, safety or protective channels. Preserve the report and response without delaying essential protection.

Same-day signature or employment decision

Preserve the exact document and deadline. Confirm whether employment continues and obtain advice before signing or resigning where possible.

Evidence or system access at risk

Lawfully preserve relevant personal employment records, document the source and protect third-party confidentiality. Do not take unauthorised information.

External referral or condonation

Calculate the forum and date immediately, file and serve through the proper route, or prepare a complete condonation application if late. Do not let internal correspondence conceal an external time limit.

Questions to ask a labour lawyer

1. Is employment still active, and who legally ended or proposes to end it?
2. Is this actual dismissal, voluntary resignation, constructive dismissal or mutual separation?
3. Which facts and documents support each section 186(1)(e) element?
4. What alternative reason for resignation may the employer allege?
5. How do the grievance, appeal or other internal options affect these facts after Maleka?
6. How should an active disciplinary, performance, incapacity or restructuring process be handled now?
7. Are discrimination, harassment, protected disclosure, wages, contract or unfair-labour-practice issues separate?
8. Which legal employer, bargaining council or CCMA has jurisdiction?
9. What is the earliest live referral date, service requirement and condonation risk?
10. Which records may be retained lawfully, and how should confidential data be protected?
11. Does the mandate cover advice, grievance, referral, condonation, conciliation, arbitration or Labour Court work?
12. What remedy is realistically available, and what evidence would support it?

End the consultation with a written action note: classification, current employment status, forum, trigger date, proposed due date, protective step, evidence gap, responsible person, cost scope and next review date. The labour-lawyer directory can help compare relevant experience, but no directory listing verifies the merits of a claim.

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