Quick answer
Before filing anything, create a one-page referral control sheet. It should identify the exact event that ended employment, every date that could trigger a deadline, the legal name of the employer, the likely dispute description, the correct forum, proof that the other party can be served, the result sought and any missing fact that could change the route. Do not describe the matter as constructive dismissal merely because the employer used the word “resign”.
Key takeaways
- Freeze the termination chronology before completing the referral.
- Use the employer's legal identity, not only a trading name.
- Check for a bargaining council before choosing the CCMA.
- Separate proven facts from the legal label you are considering.
- Treat a late-filing concern as urgent and ask about condonation.
How to use this guide
South African labour law treats constructive dismissal as a form of dismissal only where the employee terminated the employment contract because the employer made continued employment intolerable. The employee first carries the burden of establishing that a dismissal exists. A referral prepared around assumptions rather than the employment record can select the wrong event, date or forum.
1. Identify what actually ended the relationship
Write down the employer's words as accurately as possible. “You should resign”, “resign or face a hearing”, “your resignation is accepted”, “do not return”, and a formal notice of dismissal may have different legal consequences. Record who spoke, who had authority, who was present, what followed and whether the employee continued working.
Then identify the employee's act. Was there an oral or written resignation, a signed mutual-separation agreement, a refusal to resign followed by dismissal, abandonment of work, or no termination yet? Attach the exact communication rather than paraphrasing it on the referral form.
2. Build a date table before calculating time
Use separate rows for the instruction to resign, grievance or complaint, disciplinary notice, resignation date, employer acceptance, final day worked, contractual notice end date, last payment and date the dispute first became clear. Mark the source beside each date.
Section 191 generally requires a dismissal referral within thirty days of the dismissal or, if later, the employer's final decision to dismiss or uphold the dismissal. In an employee-led termination, identifying the section 190 dismissal date and any later qualifying decision is fact-specific. Do not wait for a perfect evidence bundle while the earliest plausible period runs. If that trigger may already be old, obtain current procedural advice and identify whether condonation is required.
3. Verify the party being referred
Copy the employer name from the contract, payslip, tax certificate, company record or formal correspondence. Note any group company, labour broker, franchise, public entity or recent name change. A workplace nickname or brand may not identify the legal employer.
Collect a physical address, email address and the details of the person authorised to receive documents. Keep proof of how the referral was delivered to the other party. Do not use a colleague's private contact details without a lawful reason.
4. Check the forum instead of assuming it
The LRA 7.11 form states that a bargaining council, statutory council, accredited agency or private procedure may apply. Record the employee's industry, workplace, union membership and any collective agreement. Check the current scope of the possible council rather than relying on an old payslip logo or a colleague's case.
Some issues may travel on separate tracks. An unpaid-remuneration claim, discrimination complaint, protected-disclosure dispute, contractual claim or urgent application should not be forced into a constructive-dismissal description without analysing jurisdiction and relief.
5. State the dispute in factual language
Prepare a two-sentence version. Sentence one should say how employment ended. Sentence two should state the employer conduct said to have made continued employment intolerable or why another dismissal category may apply.
Avoid conclusions such as “they broke every labour law”. A concise factual description makes it easier to test whether the matter is a resignation, constructive dismissal, employer dismissal, unfair labour practice or another dispute.
6. Record the steps taken before departure
List grievances, objections, requests for reasons, reports to senior management, requests for protection and proposals that could have allowed employment to continue. Also record why a step was unavailable, unsafe or futile. The Constitutional Court's 2026 Maleka judgment confirms a demanding objective standard: intolerability must already exist rather than be anticipated, and reasonable grievance or internal alternatives ordinarily matter unless the circumstances justify not using them.
Do not invent an internal complaint after the event. Use contemporaneous material and explain honestly when no internal route was taken.
7. Define the outcome without promising it
Write the practical result the employee wants: return to work, compensation, payment due, correction of a record, negotiated separation or another form of relief. Then ask whether that result is legally available on the facts and in the chosen forum.
The requested outcome does not determine whether constructive dismissal is proved. It helps the adviser test settlement strategy, evidence and the wording of the referral.
8. Run a final pre-filing check
Confirm the current form or online channel, the correct regional office, service on the employer, attachments, signatures and proof of submission. Keep an uneditable copy of what was filed and the confirmation received.
Do not let formatting delay a time-sensitive referral. A controlled referral can identify open issues and be supplemented through the proper process; a missed deadline may require an additional application.
This is general South African information, not a finding that a dismissal occurred or that the CCMA has jurisdiction in a particular matter.
Additional FAQ
Does asking the employer for reasons extend the referral period?
Do not assume so. A request for reasons, internal discussion or settlement approach does not by itself change the statutory trigger. Preserve the request and response, but calculate the referral position from the actual termination and any qualifying later decision.
FAQs
Does being told to resign automatically prove constructive dismissal?
No. The legal characterisation depends on what ended the employment relationship, why the employee terminated it, whether continued employment had objectively become intolerable, and the available evidence.
Which date should be used for the referral deadline?
Record every potentially relevant date, including the instruction, resignation communication, last working day and effective termination date. The correct trigger can be legally significant and should be checked promptly.
Must the dispute always go to the CCMA?
No. A bargaining council, another statutory process or a court may be relevant depending on sector, dispute type and relief. The current LRA 7.11 form expressly warns users to check whether another council or agency applies.
Does asking the employer for reasons extend the referral period?
Do not assume so. A request for reasons, internal discussion or settlement approach does not by itself change the statutory trigger. Preserve the request and response, but calculate the referral position from the actual termination and any qualifying later decision.
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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.