ANTICIPATED INTOLERABILITY: CONSTITUTIONAL COURT CLARIFIES THE THRESHOLD FOR CONSTRUCTIVE DISMISSAL

Can an employee claim for constructive dismissal where that employee merely anticipates that his or her work conditions will become intolerable in the future? This is the question with which the Constitutional Court recently grappled.

The test for constructive dismissal

Section 186(1)(e) of the Labour Relations Act (“LRA”) recognises constructive dismissal as a form of dismissal.

The well-established test for constructive dismissal requires an employee to prove three things: first, that the employee was the one who terminated the contract of employment; second; that the termination was not voluntary, (in other words, the continued employment became intolerable for the employee); and thirdly, that the employer is culpably responsible for the conduct that created the intolerable conditions for the employee.

Anticipated intolerability

In the Constitutional Court case of Maleka v Boyce N.O. and Others, the employee tried to invoke section 186(1)(e) of the LRA based on future or ‘anticipated intolerability’.

Mr Maleka was an IT Director of Tyco International (“Tyco”) who was placed at ADT, a South African subsidiary of Tyco. As a director, Mr Maleka was part of ADT’s Executive Committee (“EXCO”). Mr Maleka had previously reported to Mr Birmingham, the global Head of IT for Tyco, and Mr Clarkson, the Managing Director of ADT. However, during negotiations for the acquisition of ADT by Fidelity Security Group, ADT appointed Mr Quinn as its new Financial Director who would also oversee the IT portfolio. Consequently, Mr Maleka would have had to report to Mr Quinn following the acquisition.

Importantly, Mr. Maleka did not rely on a history of intolerability created by the employer. Instead, he contended that his forced resignation was caused by the change in his reporting line – instead of reporting to an executive, Mr Maleka would have to report to a peer at the same level of management as him. He argued that his status as executive merely existed on paper, and that his role would become managerial rather than executive in nature. Thus, Mr Maleka’s concerns mainly related to the less favourable conditions which he argued would manifest after the acquisition.

Mr Maleka brought complaints to this effect to Mr Clarkson, who heard Mr Maleka’s concerns but ultimately advised that his decision was final. Mr Clarkson also noted in these meetings that Mr Maleka’s salary had not been reduced leading up to the acquisition. Moreover, his job description and terms and conditions of his employment remained unchanged.

The Commissioner at the Commission for Conciliation, Mediation and Arbitration (“CCMA”) found that, for these reasons, Mr Maleka had failed to prove a constructive dismissal. Mr Maleka then took the Commissioner’s decision on review to the labour court, and subsequently, to the labour appeal court. Both review applications were unsuccessful. Mr Maleka then sought leave to appeal at the Constitutional Court.

The Constitutional Court majority judgment

Seegobin AJ, with four judges concurring, penned the majority judgment.

The majority judgment considered that Mr Maleka’s title, salary and EXCO membership remained unchanged. Additionally, the majority noted that the time between Mr Clarkson’s announcement and the Mr Maleka’s resignation was less than four months. This made it difficult for the majority to find that the employer had made a deliberate attempt to make continued employment objectively intolerable for Mr Maleka.
The majority classified this as an instance of ‘anticipated intolerability’ rather than an existing one. It held that section 186(1)(e) of the LRA does not envisage future or anticipated circumstances that might result in intolerability.
Furthermore, the majority emphasised that Mr Maleka was required to exhaust the employer’s internal grievance procedure before bringing a claim of constructive dismissal. Even though Mr Maleka argued that he had brought formal complaints to Mr Clarkson, the court found that he had failed to follow ADT’s formal internal grievance procedure. Therefore, Mr Maleka’s application had to fail.

The Constitutional Court minority judgment

The dissenting judgment was written by Madlanga ADCJ, with three judges concurring.

The dissent disagreed with the majority’s conclusion that the intolerability had not yet manifested. Instead, in the minority judgment classified the intolerability as a present reality for Mr Maleka. He reasoned that the intolerability arose immediately when Mr Maleka’s reporting line was unilaterally changed, requiring Mr Maleka to report to a director of the same level. The minority criticised the narrow approach taken by the majority and noted that even though Mr Maleka’s title and status not changed, they had been rendered hollow.

The dissent emphasised the constitutional value of dignity. It held that, in the context of a historically white-dominated corporate environment, the treatment of Mr Maleka could reasonably be perceived as tokenism. Additionally, the dissenting judgment noted that the announcement of the change was made publicly in front of other EXCO members and without prior consultation – something which the minority described as ‘grievously insulting, inconsiderate, insensitive and degrading; a clear assault on Mr Maleka’s dignity’.

Unlike the majority, the dissent did not require the employee to have exhausted internal remedies and held that this ought not to be a threshold requirement for constructive dismissal. Instead, it held that the proper inquiry remains whether the employer rendered continued employment intolerable. In this case, Mr Clarkson was the most senior executive within ADT, was the highest authority to whom Mr Maleka could complain. Therefore, in this case, Mr Maleka’s resignation was not unreasonable, notwithstanding that he did not exhaust the company’s internal grievance procedure.

Ultimately, the dissent found that the requirements for constructive dismissal were met.

Conclusion

The Constitutional Court’s decision in Maleka confirms that constructive dismissal remains a remedy for present realities, not future apprehensions. Employees cannot resign merely because they foresee storm clouds on the horizon, they must show that the rain has already begun to fall. Yet, the narrow 5-4 split in this Constitutional Court decision suggests that the law in this area is still to be developed. While the majority prioritised objective intolerability and procedural restraint, the minority’s dignity-centred approach serves as a reminder that workplace realities are not always measured by titles, salaries, or organisational charts.

For now, the message is clear: anticipated intolerability is insufficient to succeed with a constructive dismissal claim. Whether future courts will be persuaded by the minority’s more substantive view remains an open question, and one that we will undoubtedly continue to watch with keen interest.