South Africa
Constructive Dismissal Resignation
R249
Prepare a formal resignation letter where an employee records that they are resigning because the employer has allegedly made continued employment intolerable, while preserving the right to refer a constructive dismissal dispute.
A Constructive Dismissal Resignation is used where an employee resigns because they allege that the employer has made continued employment intolerable. In South African labour law, constructive dismissal is treated as a dismissal where the employee terminates the employment contract, with or without notice, because the employer made continued employment intolerable. The letter should clearly record the reasons for resignation, the facts relied upon, any prior attempts to resolve the matter, and the employee’s reservation of rights.
South African legal context (2026 checklist)
This document should be used carefully. A resignation is risky because the employee bears the onus to prove that a dismissal occurred. If the employee cannot prove that the employer made continued employment intolerable, the resignation may remain an ordinary resignation rather than constructive dismissal. The letter should therefore be factual, specific, and supported by evidence. It should avoid exaggeration and should explain why the employee considers continued employment intolerable. The Constitutional Court has confirmed that the test is not simply whether the employee had no alternative but to resign; the key question is whether the employer made continued employment intolerable.
- Labour Relations Act 66 of 1995
- Section 185: Right not to be unfairly dismissed or subjected to unfair labour practice
- Section 186(1)(e): Constructive dismissal where the employee terminates employment because the employer made continued employment intolerable
- Section 186(1)(f): Constructive dismissal-like protection after a section 197 or 197A transfer where the new employer provides substantially less favourable conditions
- Section 191: Referral of unfair dismissal disputes
- Section 192: Onus in dismissal disputes
- Section 193: Remedies for unfair dismissal
- Section 194: Compensation
- Code of Good Practice: Dismissal, 2025
- Strategic Liquor Services v Mvumbi NO and Others [2009] ZACC 17
- Murray v Minister of Defence [2008] ZASCA 44
- Solid Doors (Pty) Ltd v Theron NO and Others [2004] ZALAC 14
- Maleka v Boyce NO and Others [2026] ZACC 7
Use this as a starting point only. Verify current gazetted amendments, tribunal rules, and SARS / DOL circulars that may apply to your matter.
Typical questions we'll walk you through
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What is the employee’s full name, position, department, and employee number?
What is the employer’s full legal name?
To whom should the resignation be addressed?
What is the employee’s resignation date?
Will the employee resign with notice or with immediate effect?
What conduct, omissions, or workplace circumstances allegedly made continued employment intolerable?
When did the intolerable conduct begin?
Were there specific incidents, dates, emails, meetings, threats, demotions, harassment, discrimination, non-payment, or unfair treatment?
Did the employee lodge a grievance or complaint before resigning?
What was the employer’s response, if any?
Did the employee attempt to resolve the matter internally?
Why does the employee believe continued employment is no longer possible?
Does the employee reserve the right to refer a constructive dismissal dispute to the CCMA or bargaining council?
Does the employee request payment of outstanding salary, leave pay, notice pay, commission, or benefits?
Does the employee request a certificate of service?
Must company property be returned?
Should the letter be firm, detailed, neutral, or urgent?
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