12/06/2026
When Does a Resignation Become a Constructive Dismissal?
Many employees believe that if they resign because they are unhappy at work, they automatically have a claim for constructive dismissal. The law, however, sets a much higher threshold.
In the recent Constitutional Court judgment of Maleka v Boyce N.O. and Others (2026), the Court reaffirmed the key elements required to establish a constructive dismissal.
To succeed, an employee must prove:
- They resigned from employment.
- Continued employment had become objectively intolerable.
- The intolerable circumstances were caused by the employer.
- There was a direct link between the employer's conduct and the resignation.
- Resignation was effectively a last resort after reasonable alternatives had been exhausted.
The Court emphasized that workplace dissatisfaction, frustration, disagreement with management decisions, or strained relationships do not automatically amount to constructive dismissal. The test is whether a reasonable person in the same circumstances would find continued employment unbearable.
For employers, this case highlights the importance of consultation, effective grievance procedures, and addressing employee concerns before they escalate.
For employees, it serves as a reminder that resignation should not be taken lightly and that available internal remedies should generally be pursued before alleging constructive dismissal.
Constructive dismissal is one of the most challenging claims to prove in labour law. The threshold is high, and each case will be assessed on its own facts.
RSW HR provides professional labour relations and HR advisory services to assist employers and employees in managing workplace issues, mitigating risk, and ensuring compliance with labour legislation.
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