- The majority held that the change in reporting line did not render continued employment “intolerable” and that the proposed change had not materialised when Maleka resigned.
- The court found that his claim was based on “an anticipated or future state of intolerability” rather than objectively unbearable working conditions.
- In dissent, the then Acting Deputy Chief Justice Mbuyiseni Madlanga held that requiring a director to report to a peer rendered him “a director in name only” and constituted constructive dismissal.
Reynolds Mashogole Maleka was employed as an IT Director by Tyco International and placed at ADT Security South Africa. He was a member of ADT’s executive committee and reported locally to managing director Stuart Clarkson.
In December 2016, Clarkson announced at a strategic planning meeting that Allan Quinn had been appointed financial director and would also oversee the IT portfolio. Maleka would report to Quinn instead of reporting directly to Clarkson.
Maleka objected to the change, stating that it amounted to a demotion and a unilateral change to his conditions of employment. He resigned in March 2017 and referred a dispute to the Commission for Conciliation, Mediation and Arbitration, alleging constructive dismissal in terms of Section 186(1)(e) of the Labour Relations Act 66 of 1995.
The CCMA commissioner found that there had been no constructive dismissal. The Labour Court and the Labour Appeal Court upheld that finding. Maleka then approached the Constitutional Court.
Majority finds no intolerability in proposed change
Acting Justice Rishinand Seegobin, writing for the majority, reiterated that the test for constructive dismissal is objective and requires proof that the employer made continued employment intolerable.
The court stated that “[i]t is not enough that the employment relationship has become inconvenient or uncomfortable.” The focus is on whether the employer’s conduct rendered employment “intolerable”.
The majority noted that Maleka’s title, salary, roles and responsibilities had not changed. It also emphasised that the reporting line change had not yet taken effect when he resigned.
The commissioner had found that “a proposed change which does not materialise can never render continued employment intolerable for a reasonable employee.” The majority endorsed that reasoning.
The court held that Maleka’s case was “predicated on an anticipated or future state of intolerability which had not arisen by the time he made the decision to resign.”
It further agreed that his failure to exhaust ADT’s internal grievance procedures weighed against his claim, stating that employees should “refrain from hastily resigning and then arguing that the employment relationship had become unbearable.”
Finding that Maleka had no reasonable prospects of success, the court refused condonation for the late filing of his application for leave to appeal.
Dissent views reporting change as an immediate affront to dignity
The then Acting Deputy Chief Justice Mbuyiseni Madlanga, joined by three justices, disagreed. He stated that intolerability arose immediately when a director was required to report to another director at the same level. “For me,” he wrote, “that is where the intolerability arises. As at the time, that was happening in the present; nothing anticipated, nothing about the future.”
In his view, the change rendered Maleka “a director in name only; his directorship had since become a hollow title.”
The dissent found that the decision and the manner in which it was announced constituted a serious affront to dignity and that the injury was immediate rather than speculative. Justice Madlanga described the conduct as “egregious” and “a horrendous assault on a person’s dignity.”
He would have granted leave to appeal, upheld the appeal, and awarded compensation equal to one year’s remuneration.
Split judgment leaves key question unresolved
The majority refused condonation, bringing the litigation to an end. The split judgment reflects a difference in approach to the meaning of intolerability under Section 186(1)(e) of the Labour Relations Act and whether the reporting line change constituted constructive dismissal.
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