Introduction
Issues such as condonation, constructive dismissal, and unilateral changes to reporting lines frequently arise in South African labour law disputes.
These issues were recently considered by the Constitutional Court of South Africa in the case of Maleka v Boyce N.O. and Others.
The case provides important guidance on when a change in reporting structure may constitute a constructive dismissal, and whether an employee must first exhaust internal grievance procedures before resigning and claiming constructive dismissal.
The Background to the Dispute
The employee was employed as IT Director within the ADT Security Group, reporting globally to Tyco’s Head of IT and locally to ADT’s Managing Director.
During the pending acquisition of ADT by Fidelity Security Group (FSG), the company announced that the new Financial Director would oversee the IT portfolio, which meant that the employee would report to the Financial Director.
The employee viewed this unconsulted change in reporting line as a demotion, arguing that it downgraded his executive status.
However, it was common cause that:
- His job title remained unchanged
- His remuneration remained the same
- His executive committee membership remained unchanged
- His formal responsibilities remained unchanged
Although the employee raised concerns with senior management, he did not lodge a formal grievance.
A few months later, after receiving an email indicating that the Financial Director had operational authority over the IT function, the employee resigned and claimed constructive dismissal.
The Application for Condonation
The employee sought leave to appeal against the judgment of the Labour Appeal Court of South Africa, which had confirmed that no constructive dismissal had occurred.
However, his application was filed late, and he therefore applied for condonation.
When considering condonation, courts typically evaluate several factors, including:
- The degree of lateness
- The explanation for the delay
- The prospects of success on the merits
- Prejudice to the parties
In this matter, the key issue was whether the employee had reasonable prospects of success in his constructive dismissal claim.
Did the Change in Reporting Line Amount to Constructive Dismissal?
Constructive dismissal occurs when an employee resigns because the employer has made continued employment intolerable.
The employee argued that:
- The reporting change effectively demoted him
- The change undermined his dignity and status
- The circumstances justified his immediate resignation
The employer argued that:
- The change did not alter The employee’s status or duties
- The restructuring had not yet been implemented
- The employee resigned based on perception rather than objective facts
- He failed to use internal grievance procedures
The Constitutional Court’s Findings
The Court found that:
- There had been no reduction in title, responsibilities, remuneration, or executive status
- The proposed reporting structure had not yet been implemented
- The employee never actually worked under the revised reporting line
- He failed to utilise internal grievance procedures
Importantly, the Court held that the employee’s resignation was based on his dissatisfaction with the restructuring, rather than working conditions that were objectively intolerable.
The Court concluded that his claim was based on an apprehension of possible future intolerability, rather than existing unbearable working conditions.
Because the employee had no prospects of success, condonation was refused and his application was dismissed.
Key Lessons for Employers and Employees
This judgment provides several important lessons in constructive dismissal disputes.
For Employees
Employees claiming constructive dismissal must demonstrate that:
- Working conditions were objectively intolerable
- The employer was responsible for creating those conditions
- Reasonable alternatives, such as grievance procedures, were exhausted
Resigning based on perceived future problems or dissatisfaction may not be sufficient.
For Employers
Employers should ensure that:
- Organisational restructuring is clearly communicated
- Employees are given opportunities to raise grievances
- Reporting line changes do not unintentionally undermine employee status
Proper communication and internal processes can help prevent constructive dismissal disputes.
Frequently Asked Questions
What is constructive dismissal in South African labour law?
Constructive dismissal occurs when an employee resigns because the employer has made continued employment intolerable.
Can a change in reporting lines amount to constructive dismissal?
A change in reporting lines does not automatically amount to constructive dismissal. The employee must show that the change made working conditions objectively intolerable.
Do employees have to use grievance procedures before resigning?
In many cases, courts expect employees to exhaust internal grievance procedures before resigning and claiming constructive dismissal.
What is condonation in labour law?
Condonation is an application asking a court or tribunal to excuse a failure to comply with a procedural time limit, such as filing an appeal late.
Contact a Specialist Labour Lawyer
Constructive dismissal disputes can raise complex legal issues involving workplace restructuring, employee dignity, and procedural fairness.
Article written by Craig Berkowitz
25 February 2026
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
Tel: 083 453 1822
Email: cblaw@netactive.co.za
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