Sometimes an employee is not fired in so many words. Instead, the employer makes working life so unbearable that leaving feels like the only option. The law recognises this: it is called constructive dismissal, and where it is proved, a resignation is treated as a dismissal that the employee can challenge. A Constitutional Court judgment handed down in February 2026 is a useful moment to explain how it works, because it shows both what the law protects and where employees most often go wrong.

What the law says

The Labour Relations Act includes, within its definition of dismissal, the situation where an employee ends the employment, with or without notice, because the employer made continued employment intolerable. That is constructive dismissal. If you can establish it, you can pursue an unfair dismissal claim at the Commission for Conciliation, Mediation and Arbitration (the CCMA) or the relevant bargaining council, with remedies that can include compensation or reinstatement.

The test, and who must prove what

In an ordinary dismissal, the employer must justify it. Constructive dismissal is different: because you resigned, the onus is on you to prove that it was really a dismissal. The courts apply an objective test with three core elements.

• You ended the employment relationship.
• The reason was that continued employment had become intolerable. This is judged objectively, on the facts, not on how strongly you personally felt about it. The threshold is high: inconvenience, unhappiness, or an uncomfortable atmosphere is not enough.
• It was the employer who made it intolerable. The conduct complained of must come from the employer, and resignation must have been a reasonable last resort rather than a first move.

What the Maleka judgment reinforced

In the 2026 case, an employee resigned after his reporting line was changed, contending that he had been effectively demoted and sidelined. The Constitutional Court, by a majority, held that he had not been constructively dismissed. Two points from the reasoning matter for anyone in a similar position.

First, intolerability must already exist. The employee’s concern was largely about what might happen to his standing in future. The Court distinguished between an existing state of intolerability, which can found a claim, and anticipated future intolerability, which cannot. A fear of being marginalised later is not the same as a workplace that is unbearable now.

Second, you are generally expected to use the remedies available to you before resigning. The employee had options short of resigning, including raising a grievance and pursuing an unfair labour practice dispute about the alleged demotion, and had not used them. Walking away while reasonable alternatives remained undermined the claim.

The judgment was not unanimous, and the minority would have found in the employee’s favour, which is a reminder that these cases are fact-sensitive and finely balanced. But the majority message is clear: the bar is high, and it is set objectively.

If you are thinking of resigning

The most common and most costly mistake is to resign first and seek advice afterwards. By then the decision is made, and the options have narrowed. If your situation is heading this way, the sequence that protects you looks like this:

• Raise the problem formally, in writing, through a grievance, and give your employer a genuine chance to fix it.
• Keep a clear record: dates, incidents, messages, and how the employer responded or failed to.
• Consider whether the real issue is a demotion, a unilateral change to your terms, or harassment, each of which may have its own remedy that does not require you to resign at all.
• Take advice before you resign, not after. Whether conditions are objectively intolerable, and whether you have exhausted reasonable alternatives, are exactly the questions that decide these cases.

Sources: Section 186(1)(e), Labour Relations Act 66 of 1995 (constructive dismissal); section 192 (onus). Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026): majority reaffirming the objective test, the high threshold, the existing-versus-anticipated-intolerability distinction, and the expectation of exhausting internal remedies. Foundational authority: Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC).

Tzvi Brivik (Author)
Director at Malcolm Lyons & Brivik Attorneys Inc.

Malcolm Lyons & Brivik advises employees and employers on dismissal, workplace disputes, and CCMA and Labour Court proceedings. If your job has become intolerable, speak to us before you resign, because the order in which you act can decide the outcome.

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