Unfair Dismissal vs Constructive Dismissal — What's the Difference in South Africa?
Both unfair dismissal and constructive dismissal give you the right to refer a dispute to the CCMA, but they arise in different circumstances. Choosing the wrong label can delay your case.
Unfair Dismissal
The employer terminates your employment without a fair reason or without following a fair procedure.
When it applies: When you are told: "You are dismissed", "Don't come back", or your employment is terminated without a proper hearing.
Law: Labour Relations Act 66 of 1995, ss 185–186
Example: Dismissed by WhatsApp after one mistake, without a disciplinary hearing.
Constructive Dismissal
The employer makes working conditions so intolerable that you have no choice but to resign — and the law treats your resignation as a dismissal.
When it applies: When you resign because of unbearable conditions (harassment, demotion, salary cuts, abuse) deliberately created by your employer.
Law: Labour Relations Act 66 of 1995, s 186(1)(e)
Example: Employer strips your responsibilities, pays you less, and assigns you a broom cupboard office to force you out.
Key Differences at a Glance
| Aspect | Unfair Dismissal | Constructive Dismissal |
|---|
| How it ends |
Employer tells you to leave |
You resign — but feel forced to |
| Burden of proof |
Employer must prove fair reason and procedure |
Employee must prove conditions were intolerable and employer caused them |
| Difficulty to prove |
More straightforward |
Harder — requires strong evidence of intolerable conditions |
| CCMA referral deadline |
30 days from dismissal date |
30 days from resignation date |
| UIF eligibility |
Yes — involuntary unemployment |
Yes — if CCMA confirms constructive dismissal |
Frequently Asked Questions
Can I claim constructive dismissal if I resigned during a performance improvement plan?
Only if the PIP was used as a pretext to force you out, or the conditions were truly intolerable. A legitimately motivated PIP, even if stressful, is generally not constructive dismissal.
What if I resigned and then changed my mind about constructive dismissal?
Act within 30 days of resignation. Once that window closes, the CCMA cannot accept the referral (unless condonation is granted for good cause).
Is the compensation the same for constructive and unfair dismissal?
Yes — the maximum is 24 months' remuneration. However, constructive dismissal cases often result in lower awards because the employee voluntarily left, making reinstatement impractical.