Quick answer
Start with the termination event, not the label. If employment continues, the immediate route may be an internal response, disciplinary defence, grievance, unfair-labour-practice issue or urgent protection step. If the employer ended employment, assess the stated reason and procedure. If the employee resigned, consider whether it was voluntary, contractual, part of a separation agreement or potentially constructive dismissal.
Key takeaways
- Decide first whether employment has legally ended.
- Distinguish employee termination from employer termination.
- Keep parallel claims in separate analysis columns.
- Verify CCMA, bargaining-council and court jurisdiction.
- Use the earliest possible deadline until advice confirms otherwise.
How to use this guide
The same facts may also raise discrimination, protected-disclosure, unpaid-remuneration, contractual or safety issues. Those questions should be mapped separately because forum, time limit, proof and relief may differ.
1. Route A: employment has not ended
An employer may suggest resignation while a hearing, performance plan, incapacity enquiry, restructuring exercise or negotiation continues. Record whether the employee remains on payroll, is expected to work and has received a formal decision.
Possible immediate steps include responding to allegations, attending a process, lodging a grievance, asking for reasons, seeking union support or obtaining urgent advice. A mere threat is not a dismissal. However, section 191(2A) allows referral once formal notice of termination has been given, so do not wait for the final working day without checking the notice and trigger.
2. Route B: the employee resigned voluntarily
A clear resignation given for personal reasons ordinarily differs from constructive dismissal. Check the wording, notice, employer acceptance, final day and any attempt to withdraw. Pressure, poor treatment or a difficult workplace does not automatically convert every resignation into a dismissal.
Where the employee chose to leave, contractual notice, benefits, restraint, leave and final-pay questions may still require attention even if no dismissal dispute exists.
3. Route C: constructive dismissal is alleged
Section 186(1)(e) of the LRA addresses an employee who terminated employment because the employer made continued employment intolerable. Maleka confirms that the test is objective, the intolerability must exist rather than be anticipated, and inconvenience or discomfort is insufficient.
The analysis should identify employer conduct, the point of intolerability, steps taken to resolve it, why resignation followed from that conduct and why another reasonable route was unavailable or inadequate. This is a demanding, fact-specific classification rather than a default response to an ultimatum.
4. Route D: the employer dismissed the employee
If the employee refused to resign and the employer terminated employment, use the dismissal notice and stated reason. Misconduct, incapacity, poor performance and operational requirements involve different substantive and procedural questions under the LRA and the code that took effect on 4 September 2025. For an earlier event, check the legal instruments operative at that date.
The employee must establish that a dismissal occurred; once established, the employer bears the burden of proving fairness. Preserve the reason and process record rather than recasting an employer dismissal as constructive dismissal.
5. Route E: unfair treatment short of dismissal
A demotion, suspension, promotion dispute, benefits issue or disciplinary action short of dismissal may require an unfair-labour-practice analysis, but the statutory categories and time limits are specific. A workplace grievance is not automatically an unfair labour practice.
Identify the act complained of, date, decision-maker and current employment status. Ask whether a bargaining council or internal procedure applies.
6. Route F: discrimination or harassment
Pressure to resign may follow alleged discrimination or harassment. Record the protected ground, conduct, complaint, employer response and ongoing risk. The Employment Equity framework can operate separately from a dismissal route.
Do not merge every hostile interaction into a discrimination claim. Preserve facts that allow the legal ground, comparator, harassment pattern and employer response to be assessed.
7. Route G: protected disclosure or retaliation
Where the employee reported alleged wrongdoing, identify what was disclosed, to whom, when and under which procedure. The Protected Disclosures Act as amended protects qualifying disclosures and has defined requirements.
Keep the disclosure and later occupational treatment in separate timeline rows. A dismissal allegedly caused by a qualifying disclosure may raise the LRA's automatically unfair dismissal route, while non-dismissal occupational detriment requires its own statutory analysis. A general complaint about personal treatment is not necessarily a protected disclosure.
8. Route H: pay and contract issues
Unpaid salary, notice pay, leave, benefits, commission, restraint or a separation agreement may create Basic Conditions of Employment Act or contractual questions. These may coexist with dismissal but do not necessarily prove it.
Prepare the contract, payslips, calculation and payment record. Ask whether the claim belongs at the CCMA, bargaining council, Department of Employment and Labour or court under the current thresholds and facts.
9. Confirm forum and relief
Check sector coverage, collective agreements, bargaining-council jurisdiction, the CCMA route and any court-only issue. Then identify the outcome sought: continued employment, reinstatement, compensation, payment, urgent protection, correction of a process or negotiated separation.
A route is not correct merely because it offers the preferred remedy. Jurisdiction and legal elements must be satisfied independently.
10. Produce a route map
Use one row per possible issue with event, legal category, supporting facts, disputed facts, forum, trigger date, deadline, desired relief and next verification. Mark uncertainty openly.
This general classification guide cannot determine jurisdiction, prove a dismissal or select the correct cause of action for an individual dispute.
Additional FAQ
Could a protected disclosure change the route even if I resigned?
Potentially. A disclosure and alleged retaliation may raise occupational-detriment or automatically unfair-dismissal questions with different elements, forums and time limits. Preserve the disclosure, recipients and later conduct, and have each possible route classified separately.
FAQs
Is a threat of dismissal already a dismissal?
Not necessarily. Employment may still continue while a disciplinary, performance, incapacity or operational process unfolds. The exact words, authority and subsequent conduct must be assessed.
Can one event create more than one legal issue?
Yes. The facts may raise dismissal, discrimination, protected-disclosure, remuneration, contract or safety questions. Each issue may have a different forum, deadline and remedy.
Does calling a resignation constructive dismissal choose the route?
No. The employee must establish the legal elements and the forum must have jurisdiction. The label should follow the facts rather than replace them.
Could a protected disclosure change the route even if I resigned?
Potentially. A disclosure and alleged retaliation may raise occupational-detriment or automatically unfair-dismissal questions with different elements, forums and time limits. Preserve the disclosure, recipients and later conduct, and have each possible route classified separately.
Related Lexuno paths
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Source notes
- Labour Relations Act 66 of 1995
- CCMA constructive dismissal information sheet
- Maleka v Boyce N.O. and Others [2026] ZACC 7
- CCMA unfair dismissal disputes information sheet
- 2025 Code of Practice: Dismissal
- Protected Disclosures Act 26 of 2000, as amended
- Employment Equity Act 55 of 1998
- Basic Conditions of Employment Act 75 of 1997
Legal note
This article is general legal information for South African readers. It is not legal advice. Speak to a qualified legal professional about your specific facts before taking action.