Quick answer
The most useful documents are those that establish the employment relationship, record the instruction or pressure to resign, show the process surrounding it, capture the employee's response and fix the termination date. Start with the contract, latest payslips, resignation-related communications, disciplinary or performance notices, grievances, the resignation or separation document and final employment correspondence.
Key takeaways
- Prioritise documents that identify the parties and termination event.
- Keep policies and process records in their operative versions.
- Preserve full communications, not selected fragments.
- Record documents requested but not yet received.
- Do not remove restricted employer or third-party information.
How to use this guide
No single checklist proves constructive dismissal. Maleka requires a high objective threshold based on conditions that were already intolerable, not merely anticipated, and treats reasonable grievance alternatives as ordinarily material. Rank the file by the legal question each document can answer, and keep a separate list of missing records.
1. Employment foundation documents
Collect the signed contract, amendments, job description, applicable collective agreement and any transfer, promotion, secondment or remote-work arrangement. Include the employer's legal name and the employee's start date, role, reporting line, workplace and notice terms.
Where the written contract is outdated, add the record showing what changed in practice. Do not rewrite the contract summary to make it fit a later dispute.
2. The resignation demand or proposal
Preserve the full email, message thread, letter, meeting invitation, audio file lawfully made, or contemporaneous note that records the suggestion or instruction to resign. Add any draft resignation supplied by the employer and the employee's response.
If the statement was oral, create a dated factual note naming those present and the exact words remembered. Label it as a later note when it was not made at the time.
3. Disciplinary, incapacity and performance records
Gather allegations, notices, warnings, performance plans, incapacity correspondence, investigation invitations, hearing minutes, outcomes and appeal records. Include the policy or procedure that applied at the relevant date.
These documents may show the employer's stated reason and whether a live process existed. They do not by themselves prove that a resignation was voluntary, forced or legally a dismissal.
4. Grievance and complaint material
Include grievances, harassment reports, protected-disclosure communications, health-and-safety complaints, requests for accommodation, escalation emails and responses from management or human resources. Keep proof of submission and identify any unanswered item.
Do not label an ordinary disagreement as a protected disclosure without checking the statutory requirements. Preserve the underlying communication so its nature can be assessed.
5. Changes to work or treatment
Collect written changes to duties, pay, hours, workplace, reporting, access or benefits. Add rosters, instructions, revised organograms or system notices where lawfully available. If treatment differed from colleagues, identify the source rather than providing their private records without permission.
Use these records to show sequence and context. Avoid treating every management change as proof of intolerability.
6. The termination set
Keep every version of the resignation, employer acceptance, dismissal notice, mutual-separation agreement, certificate of service, exit form, return-of-property record and reference correspondence. Preserve emails about the notice period and last day worked.
The distinction between a draft, a signed document and a final communicated decision matters. Mark each version clearly and never overwrite the original file.
7. Pay, benefits and final account
Add recent payslips, remuneration schedule, leave balance, incentive documents, benefits information, final payslip, bank proof of final payment and any calculation supplied by the employer. Include an employee-created calculation only if it is labelled as such.
These records can help quantify consequences and identify a separate remuneration issue. They should not be used to imply that compensation is guaranteed.
8. Referral and forum documents
If a case has started, include the filed referral, proof of service, case number, notices, jurisdiction objection, condonation papers and bargaining-council information. Keep the exact version submitted rather than reconstructing it from memory.
Record every procedural date in a separate index. A missing attachment should be listed for follow-up, not silently replaced with a summary.
9. Build a three-tier index
Tier one should contain the contract, resignation demand, employee response, termination document and key date proof. Tier two should contain process, grievance and pay records. Tier three may hold background material that could become relevant later.
For each file record date, author, recipient, purpose, original location and whether it is complete. Use secure sharing and remove unrelated personal identifiers where appropriate.
10. Keep collection lawful
Do not bypass access controls, forward entire confidential mailboxes, take customer databases or alter records. Tell the lawyer what relevant material exists but is controlled by the employer so a lawful request or disclosure process can be considered.
This is a preparation framework, not a ruling on admissibility, privilege, confidentiality or whether the documents establish a dismissal.
Additional FAQ
Does an unsent draft resignation letter matter?
Preserve it with its metadata and label it clearly as an unsent draft. It may show the options considered or wording proposed, but it should not be represented as the communication that ended employment without proof that it was delivered or adopted.
FAQs
Do I need every document before consulting a lawyer?
No. Start with the documents that establish employment, the resignation demand, the employee's response and the termination date. Use a missing-document list so gaps are visible instead of delaying advice.
Should I provide an entire email archive?
Usually not at first. Preserve the archive lawfully, then provide a dated index and the complete threads tied to the material events. Avoid selective excerpts that remove context.
Are payslips relevant to whether dismissal occurred?
They may not prove the dismissal element, but they can confirm employer identity, remuneration, deductions, notice or final payment and may be relevant to possible relief or separate pay issues.
Does an unsent draft resignation letter matter?
Preserve it with its metadata and label it clearly as an unsent draft. It may show the options considered or wording proposed, but it should not be represented as the communication that ended employment without proof that it was delivered or adopted.
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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.