Constructive dismissal remains one of the most misunderstood areas of South African labour law. Many employees believe that resigning is a shortcut to “force” a dismissal claim — and many employers believe any resignation ends the matter.
The Constitutional Court’s judgment in Maleka v Boyce N.O. and Others brought sharper clarity to what must be proven — and it strengthens the expectation that employees should use internal remedies before resigning.
First: What is constructive dismissal?
In simple terms, constructive dismissal is when an employee resigns because the employer made continued employment objectively intolerable — and the resignation is treated as a dismissal for legal purposes (with the employee carrying a heavy burden to prove it).
The “crystal ball” issue: resigning based on fear of what might happen
A common tactic is for employees to resign because they believe a situation will become intolerable — for example:
- “My reporting line changed and I fear it’s a demotion.”
- “Management is acting oddly — I think they will target me.”
- “I anticipate I will be treated unfairly.”
The Court’s reasoning supports the principle that constructive dismissal is not meant for hypothetical future harm. It must be grounded in the reality of intolerability that exists, not speculation.
Resignation must be the last resort (and internal processes matter)
One of the strongest employer-takeaways is that the Court reinforced the expectation that employees should try available remedies first — especially where a workplace has grievance channels or other internal procedures that could resolve the dispute.
That doesn’t mean an employee must endure abuse. But it does mean this:
If you, as an employer, can show you had a clear and accessible grievance route, and the employee resigned without meaningfully using it, their constructive dismissal case becomes far more difficult.
What employers should do now (your “best defence” toolkit)
1) Upgrade your grievance policy
Your policy should be simple, visible, and workable — not a dusty annexure nobody understands.
Minimum essentials:
- Where to lodge the grievance
- Timelines for response
- Confidentiality commitments
- Escalation path if the complaint is about the employee’s direct manager
2) Train managers on behavioural risk
Constructive dismissal cases often grow out of:
- Humiliation in front of colleagues
- Unilateral changes imposed without consultation
- Retaliation after complaints
3) Keep clean records
Meeting notes, emails confirming options offered to the employee, investigation steps, and responses given are often what wins the case — not “he said/she said”.
The bottom line
Procedural integrity is now power.
When your internal policies are strong and your response is prompt and documented, you reduce the legal oxygen that constructive dismissal claims need.
