Constructive Dismissal: A hostile work environment is not enough

It is a scenario that many employers have encountered and which often causes unnecessary concern. An employee becomes unhappy in the workplace and proceeds to resign and shortly thereafter, the employer receives a referral for constructive dismissal to the CCMA.

The referral then triggers a period of soul-searching and reflection amongst the ex-employee’s colleagues, superiors, and HR as they mull over perhaps whether the employee was in fact badly treated and was justified in claiming a constructive dismissal.

What the law says about constructive dismissal

Although the term constructive dismissal does not appear in the Labour Relations Act, it is a commonly used term in South African employment law and corresponds to section 186 (1)(e) of the Labour Relations Act.

This section provides that where “an employee terminated employment with or without notice because the employer made continue continued employment intolerable for the employee,” is a form of dismissal.

While it may seem that it is not clear what exactly may be regarded as “intolerable” employment circumstances, it is often obvious to an experienced employer, Human Resources professional or lawyer when a particular constructive dismissal claim poses no risk to an employer.

A recent Labour Court example

The case of SA Municipal Workers Union on behalf of Bezuidenhout v Khai-Ma Municipality and Others, which was heard in the Labour Court in September 2025, provides a classic example of a spurious claim for constructive dismissal.

The employee concerned had been employed by the municipality, located in the Pofadder region of the Northern Cape, 2013 as a public works officer. He resigned in 2023 and advised the municipal manager that he would work out his notice and thanked the municipality for his 10 years of service.

The employee then referred a claim of a constructive dismissal to the equivalent of the CCMA for municipal employees, the South African Local Government Bargaining Council.

The employee’s claim of a hostile work environment

The employee claimed he was resigning because of a hostile work environment he had experienced over a long period of time.

In particular, he complained that he had reported no less than five municipal managers during the period of his employment, each of whom had his own personal baggage and management style which meant, so the employee contended, that in each case it was up to him to “adapt or die”.

In addition, the employee stated that he had had problems with certain named officials and an extremely sore point for the employee was that on one occasion the police had visited his house in response to information received by the municipality that tools belonging to it, namely jackhammers in a generator, were being hired out by the employee to members of the community for free.

Why the constructive dismissal claim failed

The Commissioner at the Bargaining Council dismissed the employee’s claim for constructive dismissal on the basis that even on the employee’s own version, his working conditions were not unbearable but rather that they were hostile.

Accordingly, even on the reasons given by the employer for his resignation, he did not contend that they were intolerable. Thus, based simply on the statutory requirement of “intolerability” for a successful constructive dismissal claim, the employee had not satisfied the test.

The importance of evidence and internal remedies

In addition, there were other strong grounds why the employee’s case, that he had been constructively dismissed, could be rejected on the evidence and the probabilities.

In the first instance, the employer made much of the fact that in his resignation letter the employee did not state that his working environment was hostile or intolerable. On the contrary, he thanked the employer for his 10 years of service.

Secondly, although the employee claimed that he experienced hostility in the workplace and had problems with certain officials who he named, there was no record of him having lodged grievances against him. This begs the question why he had not complained against the people who he alleged had made his working environment hostile.

What employers can learn from the case

As such, in addition to his own evidence that his work environment was hostile rather than intolerable, other factors which would have given any person advising the employer confidence that a claim for constructive dismissal had little or no prospects of success was that in the employee’s own mind at the time of his resignation he was not the victim of constructive dismissal and, secondly, he did not raise any grievances of alleged ill-treatment in the workplace.

The first factor goes to the probabilities to be assessed by a person assessing the employee’s claim for constructive dismissal, because it is improbable that the employee’s work circumstances were indeed intolerable as required by the Labour Relations Act if he did not mention this in his letter of resignation.

In addition, the law relating to constructive dismissal requires an employee to exhaust all internal remedies, such as a grievance procedure, before proceeding to resign and claim constructive dismissal.

Opportunistic constructive dismissal claims

As the judge hearing a review application by the employee challenging the dismissal of his constructive dismissal claim by the Commissioner at the Bargaining Council stated in his judgement, “Indeed, one gains the impression that he decided to voluntarily resign at the time of his own choosing and then somewhat opportunistically decided to change his mind and pursue a claim.”

Quite apart from the obvious weaknesses in the employee’s case, the case also  demonstrates the importance of an employer having a grievance procedure in place in order to ensure that should an employee complain of hostile or intolerable work conditions that there is a grievance procedure to be followed, which if not exhausted, prevents an employee from opportunistically raising claim of constructive dismissal.

Every employer needs a grievance procedure

To help protect employers against opportunistic constructive dismissal claims, TPN HR Pack includes a comprehensive grievance procedure that should form part of all employee’s terms and conditions of employment.

By implementing a clear internal process for addressing workplace disputes, businesses are better positioned to manage employee concerns proactively and reduce the risk of claims similar to those faced by the municipality in the Bezuidenhout matter.

Download the TPN HR Pack today to protect your business before workplace issues become disputes.