Constructive dismissal remains one of the most difficult dismissal disputes for employees to prove successfully. This position was recently reaffirmed by the Constitutional Court in Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7. While the majority judgment confirmed the long-established legal principles governing constructive dismissal, the minority judgment attracted significant attention for its broader consideration of workplace dignity, transformation, and the realities of modern South African workplaces.
Although the minority judgment does not change the law, it provides important guidance for employers when making management decisions that may affect senior employees and workplace relationships.
The Facts
Tyco International employed Mr Maleka as its Information Technology (IT) Director and was locally placed at ADT, a subsidiary of Tyco. As a member of ADT’s Executive Committee, he reported internationally to Tyco’s global Head of IT and locally to the Managing Director, Mr Stuart Clarkson.
During negotiations surrounding ADT’s acquisition by Fidelity Security Group, Mr Clarkson announced that, following implementation of the acquisition, Mr Maleka would no longer report directly to him. Instead, Mr Maleka would report to another executive director, Mr Allan Quinn, who would in turn report to Mr Clarkson.
Mr Maleka had not been consulted before this announcement and strongly objected to the proposed reporting structure. Although his salary, job title, and responsibilities would remain unchanged, he viewed the altered reporting line as a demotion that diminished his executive status and authority.
Believing that the change rendered his continued employment intolerable, Mr Maleka resigned and referred a constructive dismissal dispute.
The CCMA dismissed his claim, a decision later upheld by both the Labour Court and the Labour Appeal Court before ultimately reaching the Constitutional Court.
Legal Framework
Constructive dismissal is regulated by section 186(1)(e) of the Labour Relations Act 66 of 1995, which recognises a dismissal where:
“…an employee terminated employment with or without notice because the employer made continued employment intolerable.”
The Constitutional Court reaffirmed that three jurisdictional requirements must be established before constructive dismissal can be found:
- The employee must have terminated the employment relationship;
- The working conditions must have become objectively intolerable; and
- The employer must have been responsible for creating those intolerable conditions.
The Court further confirmed that employees are generally expected to exhaust available internal remedies before resigning, unless doing so would clearly be futile.
Case Law
The majority judgment held that Mr Maleka failed to establish constructive dismissal.
Although he had resigned, the Court found that he relied largely on anticipated intolerability rather than proving that objectively intolerable working conditions already existed. Furthermore, he had not exhausted the available internal grievance mechanisms before resigning.
Accordingly, the Constitutional Court found that the jurisdictional requirements for constructive dismissal had not been satisfied. The minority judgment, while agreeing with the legal test, adopted a significantly broader contextual analysis.
The minority took into account South Africa’s historical inequalities and the ongoing transformation of corporate leadership structures. It noted that Mr Maleka had advanced through a corporate environment that had traditionally lacked diversity at senior levels and was subsequently informed, without prior consultation, that he would report to another executive at the same organisational level. The minority regarded both the manner in which the change was implemented and its potential impact on Mr Maleka’s professional standing as relevant considerations.
The judgment viewed the manner in which the decision was communicated, together with the absence of prior consultation, as an affront to Mr Maleka’s dignity.
The minority further questioned the employer’s explanation for restructuring the reporting lines. It regarded assurances that salary and title would remain unchanged as insufficient where the practical effect was a reduction in executive status.
Finally, the minority concluded that requiring Mr Maleka to lodge a formal grievance against the very executive responsible for the decision would have been unreasonable, given the circumstances.
Although these findings do not alter the existing legal position, they broaden the discussion around what may constitute intolerable working conditions within South Africa’s unique social and employment context.
Application to Employers
The majority judgment provides reassurance that constructive dismissal continues to require a high evidentiary threshold. Employees cannot simply resign because they disagree with management decisions or anticipate future workplace difficulties.
However, the minority judgment provides several practical lessons for employers.
Employers should recognise that workplace decisions are rarely assessed in isolation. Courts may increasingly examine the broader context in which decisions are made, including issues relating to dignity, transformation, consultation, organisational hierarchy, and historical inequalities where these are relevant to the dispute.
The judgment also highlights a common organisational weakness regarding grievance procedures for senior executives.
Many employers maintain comprehensive grievance procedures for general employees but have limited or ineffective mechanisms for resolving disputes involving senior management, particularly where grievances are directed against the most senior decision-makers.
Developing appropriate governance structures for executive grievances may significantly reduce the risk of disputes escalating into resignation and litigation.
Practical Steps for Employers
Employers should consider the following practical measures:
- Consult affected employees before implementing significant organisational or reporting structure changes where appropriate.
- Communicate restructuring decisions transparently and provide clear business reasons supporting management decisions.
- Ensure workplace decisions are made with due regard to fairness, transformation, dignity, and organisational context.
- Maintain comprehensive grievance procedures that cater for employees at all organisational levels, including senior executives.
- Where necessary, establish independent grievance committees or appoint external facilitators to hear complaints involving senior leadership.
- Investigate and resolve workplace grievances promptly while maintaining appropriate records of all consultations and outcomes.
- Train managers on the importance of procedural fairness and respectful communication during organisational change.
Key Takeaways / Conclusion
The Constitutional Court’s majority judgment reaffirms that constructive dismissal remains one of the most difficult claims for employees to establish. Employees must still prove resignation, objectively intolerable working conditions, and that the employer was responsible for creating those conditions. They are also generally expected to exhaust reasonable internal remedies before resigning.
While the minority judgment does not create binding legal precedent, it offers valuable insight into how workplace context may influence future judicial thinking. Its emphasis on dignity, consultation, transformation, and meaningful grievance procedures serves as an important reminder that employers should carefully consider not only the substance of workplace decisions but also how those decisions are implemented and experienced by employees.
Ultimately, employers who consult meaningfully, communicate transparently, and maintain effective grievance mechanisms are better positioned to resolve workplace concerns before they develop into costly constructive dismissal disputes.
Article By Cwenga Chris Gogodla
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)