Maleka’s reporting lines were:

• Internationally, he reported directly to Paul Birmingham, the global head of IT.
• In South Africa, he had a dotted reporting line to Stuart Clarkson, ADT’s managing director.
• In 2016, Tyco and Fidelity Security Group (FSG) continued their ongoing negotiations for FSG to acquire ADT from Tyco.

According to Maleka, and ahead of the planned acquisition, Clarkson announced that Allan Quinn was appointed as ADT’s new financial director, responsible for, among other things, overseeing the IT portfolio, which was headed by Maleka. Clarkson announced that after the acquisition, Quinn would report to Clarkson, and Maleka would report to Quinn, instead of Clarkson.

Maleka was unhappy with the change in his reporting line, which he believed required him to report to someone on the same level as him and as he had not been consulted on this change.

While Maleka alleged that the new reporting line would impact his status, authority and working conditions, Clarkson assured Maleka that Quinn’s appointment was not intended to demote Maleka but to provide him with additional IT support on the SAP IT system that FSG would implement after ADT’s acquisition. Maleka’s direct reporting line remained unchanged.

After the approval of FSG’s acquisition, and Quinn’s appointment, Maleka alleged that Quinn tried to treat him as a subordinate. This led to Maleka complaining to Clarkson on a second occasion. At a meeting to discuss Maleka’s complaint on 22 March 2017, Clarkson informed him that while the change was final, Maleka’s duties, responsibilities, status and salary would remain the same.

Maleka resigned on 23 March 2017 claiming that the change in his reporting line was unacceptable, amounted to a change in his conditions of employment, and was a demotion from an executive to a managerial role. Maleka concluded his resignation letter by stating that he looked “forward to discussions on termination conditions”.

Notably, Maleka did not lodge an internal grievance prior to his resignation.

Applicable law

Constructive dismissals are governed by section 186(1)(e) of the Labour Relations Act 66 of 1995 (LRA).

Litigation history

Commission for Conciliation, Mediation and Arbitration

Following his resignation, Maleka referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The commissioner dismissed Maleka’s dispute based on, among other things, his failure to exhaust internal grievance procedures before his resignation, which suggested that his resignation was about discussing the terms of his exit, rather than resolving his complaint.

Labour Court

Dissatisfied, Maleka filed a review in the Labour Court. In considering whether Maleka should have exhausted the internal grievance procedure before resigning, the Labour Court held that while this requirement was flexible, particularly where the grievance would have been ineffective, Maleka’s failure to effectively explain why he did not pursue an internal grievance was detrimental to his claim of constructive dismissal. This, the court held, provided a basis to dismiss his application.

The Labour Court held that requiring Maleka to report to someone on the same level as him did not amount to a constructive dismissal. In addition, it held that Maleka’s claim for constructive dismissal was not supported based on there being a business rationale for the change in his reporting line.

The Labour Court agreed with the commissioner’s reasoning that Maleka was more concerned with discussing the terms of his exit than resolving his complaint. His review application was dismissed.

Labour Appeal Court

Maleka argued that the Labour Court erred in finding that he had not established a constructive dismissal because he failed to exhaust the internal grievance procedure. Maleka contended that he raised various complaints to Clarkson over a three-month period before being informed that the decision was final. The Labour Appeal Court (LAC) was unsatisfied with Maleka’s failure to pursue alternative remedies short of resigning, including the referral of an unfair labour practice dispute to the CCMA, finding that his working conditions had not become intolerable. Maleka’s appeal was dismissed.

Constitutional Court (majority judgment)

Having lost thrice in succession, Maleka argued in the Constitutional Court that the Labour Court and LAC did not apply the test to determine a constructive dismissal as set out in Strategic Liquor Services v Mvumbi N.O [2009] 30 ILJ 1526 where the court held that the test was not whether the employee had alternatives to dismissal (such as exhausting internal grievances), but whether the employer made continued employment intolerable.

While the court agreed with the CCMA commissioner’s decision that Maleka had not been constructively dismissed, the court considered whether an employee is required to explore alternative remedies to resolve their dispute before resigning. This was an import focus of the case considering previous cases in the lower courts on this point.

The court agreed with the approach adopted in previous Labour Court decisions, specifically that where an employee elects not to follow internal grievance procedures, the employee cannot claim constructive dismissal unless they can demonstrate that circumstances exist to absolve them of this procedural step. Alleging no confidence in a grievance process or the outcome of such grievance is not sufficient.

The court considered the facts before the CCMA commissioner, and importantly Maleka’s admission that he was aware of ADT’s grievance procedure. Despite being aware of this, Maleka failed to lodge a grievance. Maleka’s explanation for not lodging a grievance was due to him being informed by Birmingham that he was not aware of the change in Maleka’s reporting line, and it would have been unnecessary for him to lodge a grievance with Clarkson, the highest person of authority in South Africa. The court disagreed with Maleka’s explanation. Maleka should have lodged a grievance, and seen how the process unfolded, instead of prejudging the fairness of the outcome.

The court agreed with the commissioner’s finding that Maleka’s failure to lodge an internal grievance was not in his favour. Maleka’s application was dismissed.

Importance of exhausting internal procedures confirmed by the Labour Court

In the recent decision in Sally v CPES (Pty) Ltd t/a Vivo SA (JS419/22) [2026] ZALCJHB, Mohamed Sally, a practising Muslim, was employed by CPES (Pty) Ltd t/a Vivo SA (CPES) as a spare part manager with effect from 7 March 2022.

On 10 March, Sally requested religious accommodation which would allow him to attend Friday prayers the next day. Sally resigned less than 24 hours later (on 11 March 2022) alleging that his resignation constituted a constructive dismissal that was automatically unfair based on CPES’ refusal to accommodate his request to attend Friday afternoon prayers.

Importantly, before his resignation, Sally did not (i) provide CPES with an opportunity to implement a solution, including the unpaid leave option he proposed, or (ii) exhaust internal procedures.

The Labour Court dismissed Sally’s claim and cautioned that constructive dismissal should not be found where an employee fails to use internal procedures to resolve a grievance (where reasonably available) unless the internal process would be objectively futile.

Key takeaways

Informal complaints to a manager are not to be misconstrued as substitutes to lodging a formal grievance.

• Where an employer has an available and functional grievance procedure, an employee who resigns without using it will be hard pressed to establish constructive dismissal, unless they can demonstrate that following such process would be futile.
• Constructive dismissal is a matter of last resort and is not for the taking. Failure to exhaust internal remedies is fatal to a claim of constructive dismissal.