Constructive Dismissal and Internal Procedures in South African Labour Law – Lessons from Maleka and Sally

Employees and employers alike often wrestle with the question of when a resignation becomes a “constructive dismissal” under South African labour law. This article answers four key questions: What is constructive dismissal under South African law? Must employees exhaust internal procedures before claiming constructive dismissal? What did the Constitutional Court decide in Maleka v Boyce? and how did the Labour Court apply these principles in Sally v CPES? By unpacking these recent decisions, the article explains the legal test for constructive dismissal, why the courts insist on using internal remedies, and what practical lessons both workers and businesses should draw from these cases.

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in labour and employment law.

 

Key Takeaways

 

• Constructive dismissal claims will fail where employees resign without first using reasonable internal remedies such as grievance procedures or CCMA processes, unless those remedies would clearly be futile.
• The Labour Court and Constitutional Court both stress that the threshold for “intolerable” working conditions under section 186(1)(e) of the LRA is high and assessed objectively, not based on an employee’s perception.
• Recent cases involving Maleka and Sally underscore that changes to reporting lines or disagreements about accommodation, without more, seldom justify immediate resignation.
• Employers should maintain clear internal procedures and employees should exhaust them before resigning, to avoid costly and unsuccessful litigation.

Understanding Constructive Dismissal and Internal Remedies

What is constructive dismissal under South African Law?

Under section 186(1)(e) of the Labour Relations Act (LRA), a constructive dismissal occurs where an employee resigns because the employer has made continued employment intolerable. The focus is not on whether the employee was unhappy, but whether a reasonable person in the same circumstances would have found the situation so unbearable that resignation was the only option.

Courts have consistently emphasised that this test is objective and the threshold for intolerability is high. Mere unhappiness, perceived loss of status, or conflict with management will not be enough; the employee must show that the employer’s conduct was so severe that no reasonable employee could be expected to stay.

Must employees exhaust internal procedures before claiming constructive dismissal?”

The duty to use internal procedures

A further key principle is that constructive dismissal should be a remedy of last resort. Where reasonable internal procedures exist – such as a grievance process, unfair labour practice proceedings at the CCMA, or other dispute mechanisms – employees are generally required to use them before resigning.

Both the Labour Court and higher courts have indicated that, save in cases where internal remedies would be objectively futile, an employee who resigns prematurely and bypasses available procedures will struggle to prove constructive dismissal. This approach protects both the employer’s right to address issues internally and the broader statutory scheme that favours problem‑solving over litigation.

Against this backdrop, two recent cases – one from the Constitutional Court and one from the Labour Court – reinforce the importance of exhausting internal avenues before walking away.

The Maleka Case: Reporting-Line Changes and Anticipated Intolerability

What did the Constitutional Court decide in Maleka v Boyce?

Facts of the case

In Reynolds Maleka v Timothy Boyce N.O and Others (CCT 175/23) ZACC 4, Mr Maleka had been employed since 2014 as IT Director by Tyco, and was placed at ADT, Tyco’s South African subsidiary. He served on ADT’s executive committee, reporting internationally to Tyco’s global head of IT and locally to ADT’s managing director.

In late 2016, ahead of a planned acquisition of ADT by Fidelity Security Group, ADT announced the appointment of a new financial director, Mr Quinn, who would oversee the IT portfolio. Once the acquisition was completed, this would mean that Maleka would report to Quinn, someone on his own level. Maleka saw this as a demotion which threatened his authority and status and immediately expressed his opposition. He was told the decision was final.

Shortly after the Competition Commission approved the acquisition, Maleka had a brief follow‑up meeting with the managing director, who reiterated that the reporting line decision would stand. The next day, Maleka resigned and later referred a dispute to the CCMA, alleging that he had been constructively dismissed.

Decisions in the CCMA, Labour Court and Labour Appeal Court

The CCMA Commissioner rejected Maleka’s constructive dismissal claim. The Commissioner found that the change in reporting line did not affect his title, salary, responsibilities or his seat on the executive committee and was a reasonable operational response to the pending sale. Crucially, Maleka had not used ADT’s grievance procedure before resigning.

The Labour Court, applying the test of correctness to the Commissioner’s ruling, agreed. It held that without a compelling reason to bypass the grievance process, his failure to use it was fatal to the constructive dismissal claim. The Court further held that the reporting‑line change, in the absence of any change to salary or title, did not render his employment objectively intolerable; his resignation was impulsive and not a last resort.

On appeal, the Labour Appeal Court (LAC) similarly held that Maleka’s resignation was premature. The LAC noted that he could have:

• used ADT’s internal grievance procedure, and/or
• referred unfair labour practice or unfair discrimination disputes to the CCMA before resigning.

His failure to pursue these options meant that intolerability had not yet materialised; it was at most anticipated. The LAC therefore dismissed his appeal.

Constitutional Court majority: high threshold and need to explore remedies

The Constitutional Court’s majority judgment, penned by Seegobin AJ, confirmed these principles. Drawing on established authority, the Court reiterated that constructive dismissal requires proof that the employer made continued employment objectively intolerable and that the threshold for intolerability is high.

The majority held that Maleka’s dissatisfaction stemmed from the change in reporting line, not from any existing state of intolerability. His fears about future marginalisation amounted to anticipated intolerability, which is not sufficient under section 186(1)(e). The Court also stressed that an employee in his position should first explore reasonable alternative remedies before resigning. Because Maleka had not done so and could not show that internal or external remedies would have been futile, his application had no prospects of success and was dismissed.

A strong dissent would have found constructive dismissal on the particular facts, emphasising dignity and the historical context of racial inequality in corporate South Africa. However, for current purposes, the binding majority confirms a strict, remedy‑focused approach.

The Sally Case: Religious Accommodation and the Labour Court’s Approach

How did the Labour Court apply these principles in Sally v CPES?”

Facts and claim

In Sally v CPES (Pty) Ltd t/a Vivo SA (JS419/22) ZALCJHB, Mr Mohamed Sally, a practising Muslim, was employed as a spare parts manager from 7 March 2022. On 10 March, he requested religious accommodation to attend Friday prayers, including the option of unpaid leave. Before CPES could meaningfully respond or implement any solution, Sally resigned the very next day, alleging that his resignation amounted to an automatically unfair constructive dismissal based on religious discrimination.

Labour Court’s decision

The Labour Court dismissed the claim and again underlined the importance of using internal procedures and allowing the employer an opportunity to respond. The Court noted that Sally:

• had not given CPES reasonable time to consider and implement his proposed unpaid‑leave solution; and
• had not exhausted available internal remedies before resigning.

The Court cautioned that constructive dismissal should not be found where an employee fails to use reasonably available internal processes to address their grievance, unless using those processes would objectively be futile. On these facts, CPES had barely been given 24 hours to respond. The situation had not yet become objectively intolerable; instead, resignation was premature.

Conclusion: Practical Lessons for Employers and Employees

The Maleka and Sally decisions deliver a consistent message: constructive dismissal is an exceptional remedy, not a shortcut when employment relationships strain. Employees must:

• distinguish between genuine intolerability and anticipated or perceived harm.
• use internal grievance procedures and statutory remedies where reasonably available; and
• treat resignation as a last resort, only after attempts to resolve the situation have failed or would clearly be futile.

For employers, the cases highlight the value of clear internal policies, accessible grievance mechanisms, and prompt, good‑faith engagement with employees’ concerns – especially around restructurings, reporting‑line changes and religious accommodation.

FAQ

Q1: When will a South African court find that an employee was constructively dismissed?

A: Only when the employer has made continued employment objectively intolerable, and resignation was a last resort after reasonable alternatives, including internal procedures, have been tried or shown to be futile.

Q2: Do I have to use my employer’s grievance procedure before resigning?

A: In almost all cases, yes. Failing to use an available grievance process or CCMA remedies will usually be fatal to a constructive dismissal claim, unless using them would clearly be pointless.

Q3: Is a change in reporting line automatically a demotion or constructive dismissal?

A: No. Courts look at the full picture, including title, pay, responsibilities and context. A change in reporting line alone, without more, rarely makes employment intolerable.

Q4: Can refusal or delay in granting religious accommodation amount to constructive dismissal?

A: Not automatically. The employer must be given a reasonable opportunity to consider the request and explore solutions; immediate resignation without engaging internal processes will usually defeat a claim.

If you are facing changes at work, considering resignation, or dealing with an employee who alleges constructive dismissal, it is crucial to get tailored legal advice before taking the next step. Contact Bregman Moodley Attorneys for practical, strategic guidance on South African labour law, internal procedures and constructive dismissal risks.