The Constitutional Court has dismissed an application for leave to appeal by a former IT director who resigned after refusing to report to a newly appointed financial directora change he claimed amounted to constructive dismissal.
Reynolds Maleka, who holds a BCom and an MBA, was employed as IT Director at Tyco International, an Irish company, and placed to work at ADT, its South African subsidiary. He worked at the company from 2014 until his resignation in 2017.
Internationally, he reported directly to Paul Birmingham, the global Head of IT for Tyco. In South Africa, he reported to Stuart Clarkson, the Managing Director of ADT.
The Change
In 2016, Clarkson announced that ADT had appointed Allan Quinn as its new Financial Director. Quinn would also oversee the IT portfolio, which Maleka headed, as well as take responsibility for logistics and procurement. It was further announced that Quinn would report to Clarkson and that Maleka would, in turn, report to Quinn.
Maleka was unhappy. In his view, he would be reporting directly to a peer at the same management level. Moreover, he had not been consulted. He raised his concerns with Clarkson immediately, informing him that he would not accept it.
The Resignation
Maleka objected to the change, arguing that being required to report to a peer amounted to a demotion and a unilateral alteration of his conditions of employment. However, his salary, title, responsibilities, and position on the executive committee remained unchanged.
In his resignation letter, he stated that the change to his reporting line was unacceptable and effectively altered his employment conditions. He said he had expected to be consulted. He believed the change amounted to a demotion from an executive to a managerial role.
The CCMA
Maleka referred the matter to the CCMA, claiming constructive dismissal.
The commissioner found that Maleka had failed to prove that his continued employment had become objectively intolerable. The change in reporting line did not affect his remuneration, title, or executive status. The resignation, the commissioner concluded, stemmed more from dissatisfaction than from intolerable working conditions.
The Courts
The Labour Court upheld the award, finding that Maleka had not established a dismissal in law. It also held that he had failed to exhaust available internal grievance procedures and had acted prematurely.
The Labour Appeal Court agreed, stating that he had other remedies availableincluding referring an unfair labour practice disputeand had not demonstrated that his situation was unbearable.
The Constitutional Court
Unrelenting, Maleka approached the Constitutional Court. The apex court emphasised the legal test for constructive dismissal: an employee must prove that:
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The employer made continued employment objectively intolerable
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The employee had no reasonable alternative but to resign
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The intolerability was caused by the employer’s conduct
The Court found that Maleka’s terms and conditions of employment had not materially changed. His claim was based largely on anticipated future harm, not actual intolerable circumstances.
The Court also noted that while internal grievance procedures are not an absolute prerequisite, employees are generally expected to pursue available remedies unless doing so would be futile. Maleka had not shown that exhausting internal remedies would have been pointless.
Although the Court acknowledged the importance of dignity in employment relationships, it found that the facts did not support a conclusion that his dignity had been impaired to the extent required.
The Outcome
Because Maleka failed to demonstrate reasonable prospects of success, the court refused condonation for the late filing of his application and dismissed the matter. No order as to costs was made.
The Bottom Line
The case is a reminder that constructive dismissal is a high bar. An employee must show that working conditions were intolerable, not merely displeasing. A change in reporting lines, without more, does not meet that thresholdespecially when salary, title, and responsibilities remain untouched.
For employers, the judgment affirms that internal restructures, if implemented fairly and without material detriment, are unlikely to trigger successful constructive dismissal claims. For employees, it underscores the importance of exhausting internal remedies before heading to the CCMA.
