In a significant judgment that has taken the Constitutional Court over 18 months to deliver, it has ruled that an employee cannot succeed in a claim for constructive dismissal based merely on an anticipation that their working conditions will become intolerable.

The court also stressed that employees must first exhaust internal grievance procedures before resigning, reports GroundUp.

Resignation, the court held, should be a measure of last resource.

The case involved Mr Maleka, who was employed by ADT from 2014 until his resignation in 2017 as IT director and a member of its executive committee (Exco). Following changes at the company, Maleka was required to report to someone who had been his peer. The reporting change did not alter Maleka’s title, position, salary, role and responsibilities or his position on the Exco.

Maleka, however, regarded the change as a demotion and he resigned on 23 March 2017.

In his resignation letter, he described the change as unacceptable, said he should have been consulted, and maintained it amounted to a demotion from an executive role to a managerial one.

Maleka referred the dispute to the CCMA, claiming constructive dismissal. But the commissioner found against him, describing Maleka’s complaint as an ‘ego thing’.

Maleka approached the Labour Court to review the CCMA decision. The court held that irritation, frustration and workplace tension are common and do not, on their own, render conditions intolerable. 

It also found that Maleka had failed to provide a satisfactory explanation for not pursuing internal grievance procedures before resigning.

The Labour Court dismissed his application. The Labour Appeal Court reached the same conclusion. The Constitutional Court considered whether the unilateral change in line reporting rendered Maleka’s continued employment intolerable and left him with no reasonable alternative but to resign.

In a majority judgment written by Acting Justice Rishinand Seegobin, with justices Jody Kollapen, Steven Majiedt, Zukisa Tshiqi and Acting Justice Ronel Tolmay concurring, the appeal was dismissed, according to GroundUp.

The majority held that constructive dismissal requires proof that continued employment is ‘intolerable’ – something ‘insufferable’, not merely ‘difficult, fraught or even sour’.

Conduct that is merely ‘rude, uncompromising or unbecoming’ would not suffice.

Labour law, the majority said, does not permit employees to resign for ‘flimsy reasons’ and then claim constructive dismissal. Resignation must be a last resort.

The majority also found that Maleka’s failure to make use of internal grievance processes before resigning counted against him.

A dissenting judgment, by Acting Deputy Chief Justice Mbuyiseli Madlanga, with Chief Justice Mandisa Maya, Justice Rammaka Mathopo and Justice Owen Rogers concurring, would have upheld Maleka’s appeal. 

The dissenting judges contended that Maleka’s decision to resign had to be understood in the broader context of the continued tokenism of Black employees in white corporate SA.

The dissenting judges found that without providing a cogent reason, the change was belittling and injured Maleka’s dignity.

Full GroundUp report

Judgment