I Resigned – But was I Dismissed?

Aug 18, 2026

Introduction

An employee resigns and then refers an unfair dismissal dispute to the CCMA, claiming that the resignation amounted to a constructive dismissal.

For employers, the obvious question is: How can there be a dismissal when the employee resigned?

The answer lies in section 186(1)(e) of the Labour Relations Act 66 of 1995 (“the LRA”), which recognises constructive dismissal where an employee terminates the employment relationship because the employer made continued employment intolerable.

The Constitutional Court’s recent judgment in Maleka v Boyce N.O. and Others [2026] ZACC 7 provides a useful reminder of the demanding requirements for establishing constructive dismissal.

What Is Constructive Dismissal?

Section 186(1)(e) of the LRA provides that a dismissal includes a situation where an employee terminates the employment relationship, with or without notice, because the employer made continued employment intolerable.

The Labour Appeal Court identified three requirements in Solid Doors (Pty) Ltd v Theron NO and Others [2004] ZALAC 14:

The employee must have terminated the employment relationship;
continued employment must have become intolerable; and
the employer must have made continued employment intolerable.

The employee bears the onus of establishing that the resignation amounted to a dismissal.

An Employee’s Unhappiness Is Not Enough

The test for intolerability is objective. An employee may genuinely feel that the workplace has become unbearable, but the employee’s subjective perception does not determine the legal question.

In Murray v Minister of Defence [2008] ZASCA 44, the Supreme Court of Appeal emphasised that the employer must have been culpably responsible for the circumstances that made continued employment intolerable.

This means that an employee’s dissatisfaction with a management decision, difficult working relationship or change in workplace arrangements will not automatically constitute constructive dismissal.

The Maleka Judgment

In Maleka, the employee was an IT Director whose reporting structure was changed following a proposed acquisition. He believed that the new reporting arrangement would undermine his status, authority and working conditions.

He resigned and claimed constructive dismissal.

The CCMA rejected the claim, finding that the change did not make continued employment intolerable. His title, salary, responsibilities and position on the executive committee remained unchanged. The Labour Court and Labour Appeal Court upheld the finding.

The Constitutional Court majority also dismissed the claim. It found that the employee’s concerns related largely to anticipated future difficulties, rather than circumstances that had already made continued employment intolerable.

Importantly, the judgment was not unanimous. The dissenting judgment considered that the restructuring had substantially undermined the employee’s status and role and would have found constructive dismissal.

This illustrates how fact-sensitive constructive-dismissal disputes can be.

What Does This Mean for Employers?

Employers should not assume that a resignation automatically ends the matter.

Where an employee resigns following allegations of bullying, harassment, unfair treatment, restructuring or other workplace difficulties, the circumstances surrounding the resignation should be carefully considered.

Employers should:

investigate serious complaints;
provide appropriate grievance mechanisms;
document workplace concerns and responses;
ensure that management decisions have legitimate and defensible reasons; and
avoid conduct that could reasonably be viewed as victimisation or retaliation.

At the same time, employers should remember that legitimate operational decisions do not become constructive dismissal merely because an employee disagrees with them.

Conclusion

Constructive dismissal exists to address circumstances where an employer effectively leaves an employee with no reasonable choice but to terminate the employment relationship.

However, the threshold is high.

A difficult workplace is not necessarily an intolerable workplace, and an unhappy employee is not necessarily a constructively dismissed employee.

The Maleka judgment reinforces the importance of objectively assessing the employer’s conduct and the circumstances existing at the time of resignation.

For employers, the practical lesson is simple: manage workplace conflict proactively, document decisions carefully and take complaints seriously.

For employees, resignation should not be the first response to workplace dissatisfaction. Where possible, concerns should be raised and appropriate remedies explored before terminating the employment relationship.

Sources

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