by Saiuri Seetal and Hlengiwe Skosana
In the case of Maleka v Boyce N.O. and Others [2026] ZACC 7, the Constitutional Court had to determine whether an employee that resigned because of changes in reporting structures was constructively dismissed in terms of section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA).
Background
Mr Reynolds Maleka was employed as an IT Director by Tyco, an international corporation, and worked within its South African subsidiary, ADT Security (Pty) Ltd. As part of ADT’s executive leadership structure, Maleka served on the executive committee (EXCO).
His reporting arrangement consisted of two lines of accountability, namely a direct solid reporting line to Tyco’s global head of IT, Mr Birmingham and a local dotted reporting line to ADT’s managing director, Mr Stuart Clarkson.
During the period in which Fidelity Security Group was negotiating to acquire ADT, Clarkson announced at an EXCO strategy meeting that a newly appointed financial director, Mr Allan Quinn, would assume oversight of the IT division. This meant that Maleka would report to Quinn instead of reporting directly to Clarkson.
Maleka was not consulted before the announcement. He objected to the change on the basis that reporting to Quinn, whom he regarded as a colleague of equal ranking, effectively diluted his status within the organisation. Despite raising his concerns with Clarkson on three occasions within a period of three months, he was informed that the decision would stand, although assurances were given that his title, salary, responsibilities and executive status would remain unchanged.
Believing the change to constitute a demotion, Maleka resigned and subsequently referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), alleging constructive dismissal.
CCMA and Labour Courts
The CCMA rejected Maleka’s claim on the basis that he ought to have exhausted all internal procedures first. The Labour Court and the Labour Appeal Court upheld the CCMA’s decision.
Constitutional Court
Majority judgment
Writing for the majority, Acting Justice Seegobin reaffirmed the established elements required to prove constructive dismissal which are: (a) the employee must have terminated the employment relationship; (b) the resignation must have been prompted by circumstances that rendered continued employment intolerable; and (c) the intolerable conditions must have been caused by the employer.
The court reiterated that the concept of intolerability sets a very high threshold. The conduct in question must be so severe that the employee cannot reasonably be expected to endure it.
Applying these principles, the majority found that Maleka’s claim did not satisfy this standard. In the court’s view, Maleka’s resignation was based on an anticipated future intolerability, rather than an objectively intolerable situation that had already materialised.
Another factor that worked against Maleka was his failure to utilise the employer’s internal grievance procedures before resigning. The court noted that the LRA promotes the resolution of workplace disputes internally wherever possible and an employee’s decision to resign without pursuing available remedies may weaken a constructive dismissal claim.
On this basis, the majority concluded that the prospects of success on appeal were insufficient and ultimately dismissed the case.
Dissenting view
The minority judgment, penned by Acting Deputy Chief Justice Madlanga, held that Maleka had been constructively dismissed and the dismissal was unfair.
Madlanga ADCJ held that the change in reporting structure was inherently humiliating and objectively intolerable, and the public announcement of the change deeply disrespectful and damaging to Maleka’s professional standing and dignity.
Conclusion
Although the appeal did not ultimately succeed, the case provides valuable guidance on the application of section 186(1)(e) of the LRA.
Firstly, the judgment reinforces the strict evidentiary burden placed on employees alleging constructive dismissal. Workplace dissatisfaction, perceived demotions or organisational restructuring will not easily meet the standard of intolerability.
Secondly, the decision underscores the importance of internal dispute-resolution mechanisms. Employees are generally expected to explore available remedies before resigning.
Finally, the divergence between the majority and minority judgments illustrates that the concept of intolerability remains contested. This is a caution to employees to pause and reflect before resigning, follow internal processes and only resign in the face of objective intolerability of continuation of employment.