The Constitutional Court recently delivered an important judgment in Maleka v Boyce N.O. and Others, a case that revisits the legal threshold required to establish constructive dismissal under South African labour law. The matter required the Court to determine whether a change in an employee’s reporting structure could render continued employment so unbearable that resignation becomes justified.
The Court also addressed several related questions of practical significance in labour disputes. These included whether employees alleging constructive dismissal must ordinarily pursue internal grievance procedures before resigning, and whether a claim under section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA) can be based on anticipated or potential workplace difficulties rather than existing intolerable conditions.
Background to the dispute
The dispute arose during negotiations in 2016 for Fidelity Security Group to acquire ADT Security (Pty) Ltd from Tyco International. At a strategic executive meeting in December 2016, the company’s chief executive officer, Mr Clarkson, announced that a new financial director, Mr Allan Quinn, had been appointed. As part of a restructuring of executive responsibilities, the applicant, Mr Maleka, would thereafter report to Mr Quinn in relation to the IT portfolio rather than directly to the CEO.
Mr Maleka was not consulted prior to this announcement. He immediately raised objections, arguing that the revised reporting line amounted to a demotion because he would effectively report to someone whom he considered to be at the same managerial level as himself. Mr Clarkson sought to reassure him that the change did not affect his role, remuneration, responsibilities, or executive status.
Despite these assurances, Mr Maleka resigned several months later, on 23 March 2017. In his resignation letter he maintained that the revised reporting structure had downgraded his position from an executive function to a managerial one.
Proceedings before the CCMA and the Labour Courts
The matter first came before the Commission for Conciliation, Mediation and Arbitration (CCMA). Mr Maleka argued that the alteration to his reporting line undermined his professional standing and rendered his working environment intolerable. He further claimed that the conduct of both Mr Clarkson and Mr Quinn after he objected to the change made his continued employment impossible.
The commissioner rejected this argument. The arbitration award concluded that the evidence did not demonstrate circumstances sufficiently severe to constitute constructive dismissal. The commissioner characterised the dispute as largely arising from a disagreement regarding management hierarchy rather than intolerable working conditions.
Mr Maleka sought to challenge this outcome in the Labour Court, arguing that the commissioner had failed to properly consider key evidence. However, the Labour Court upheld the arbitration award. It reasoned that the change in reporting structure did not fundamentally alter the applicant’s employment conditions or make the workplace unbearable.
The matter then proceeded to the Labour Appeal Court (LAC). The LAC emphasised that Mr Maleka had not attempted to utilise the employer’s grievance procedures. It further observed that if he believed the change amounted to a demotion or an unfair labour practice, those issues could have been pursued through appropriate statutory mechanisms rather than through resignation.
The Constitutional Court’s analysis
Mr Maleka ultimately sought leave to appeal to the Constitutional Court. As his application was filed outside the prescribed time limits, he first needed to obtain condonation. This required the Court to consider whether the appeal had reasonable prospects of success.
In analysing the dispute, the Constitutional Court revisited the legal framework governing constructive dismissal. The Court confirmed that the Labour Court must initially determine whether a dismissal occurred at all, because this affects whether the CCMA had jurisdiction to hear the dispute. This determination involves applying a correctness enquiry. Only once a dismissal is established does the well-known reasonableness standard articulated in Sidumo become relevant.
The Court emphasised that the standard for proving constructive dismissal remains intentionally demanding. A claimant must show that the employer created conditions that were objectively unbearable. Mere dissatisfaction, tension, or conflict within the workplace is insufficient. Resignation should represent the final step taken when no reasonable alternative remains.
The Court warned that lowering this threshold could create undesirable consequences in the employment environment. If employees were permitted to resign whenever workplace relations became strained and then claim constructive dismissal, the balance between employee protection and employer fairness would be undermined.
Anticipated intolerability is insufficient
A central issue in the case was whether Mr Maleka’s resignation was based on circumstances that had already become intolerable, or merely on concerns about what might occur in the future.
The Constitutional Court found that the applicant’s resignation appeared to be motivated largely by apprehension regarding the implications of the new reporting structure once the Fidelity acquisition took effect. In other words, his concerns related to potential future developments rather than conditions that had already rendered the workplace unbearable.
The Court held that section 186(1)(e) of the LRA does not extend to hypothetical or speculative scenarios. Constructive dismissal requires proof of an existing situation that makes continued employment impossible to endure. Anticipated difficulties or assumptions about how matters may unfold do not meet this standard.
Failure to utilise internal grievance procedures
Another significant aspect of the judgment concerns the role of internal workplace dispute mechanisms.
The Constitutional Court reiterated that employees who resign and later allege constructive dismissal are generally expected to demonstrate that they attempted to resolve the dispute internally. This typically involves lodging a grievance or pursuing other available procedures before terminating the employment relationship.
There may be exceptional cases where this requirement is relaxed, but the employee must provide convincing reasons. Simply asserting that the process would be ineffective, or expressing a lack of confidence in the employer, will not ordinarily suffice.
In Mr Maleka’s case, the Court noted that he was aware of the employer’s grievance process but chose not to make use of it. This omission weakened his argument that resignation was the only reasonable option available to him.
Outcome of the case
After considering the full evidentiary record, the Constitutional Court agreed with the earlier decisions of the CCMA and the Labour Court. The Court concluded that the circumstances did not demonstrate constructive dismissal. As no dismissal had been established, there was no need to proceed to the second stage of the Sidumo enquiry concerning the reasonableness of the commissioner’s decision.
The commissioner’s award therefore remained intact.
Practical implications for employers and employees
The judgment provides several important clarifications regarding constructive dismissal claims.
Employees cannot rely on potential or anticipated workplace difficulties to establish intolerability. The law requires proof that the employment environment has already become objectively unbearable.
Workers who believe that changes to their employment conditions are unlawful or unfair should pursue the appropriate remedies provided by the LRA, such as unfair labour practice claims, rather than resigning prematurely.
In addition, employees who intend to rely on constructive dismissal must generally demonstrate that they attempted to resolve the dispute internally before resigning. Failure to use available grievance procedures may seriously undermine such claims.
For employers, the decision reinforces the importance of maintaining clear grievance mechanisms and documenting efforts to address employee concerns when disputes arise.
