Constructive dismissal when remote work ends, baseless accusations arise and pay is docked: key lessons from Lewis v CCMA & Van de Venter Mojapelo (PTY) LTD

In Adele Lewis v Commission for Conciliation, Mediation and Arbitration; Gert van der Berg N.O.; Van de Venter Mojapelo (Pty) Ltd (C302/2024, 25 November 2025), the Labour Court reviewed and set aside a CCMA award, holding that Adele Lewis ("Lewis") was constructively dismissed. The Court found that while recalling employees to the office was reasonable, the employer’s handling of Lewis’s medically certified sick leave (accusing her of malingering, withholding pay, and departing from its own procedures) breached the duty of mutual trust and confidence, rendering continued employment intolerable. The Court declared the dismissal unfair and awarded compensation of R310,571.19.

Facts of the case

Lewis joined the employer in 2019, later becoming Chief Performance Officer and an EXCO member. During Covid-19 she moved to Cape Town with the employer’s approval; however, the permanency of that move was disputed.

In late 2023 the business lost major clients. On 6 November 2023 the employer cancelled remote work with effect from 1 January 2024 and required attendance at its offices in Randburg and KZN. Lewis sought an extension to March 2024, which was refused and communication with the CEO deteriorated thereafter.

On 13 November 2023 Lewis submitted a medical certificate for anxiety and depression, which was subsequently supported by her GP’s letter. HR first confirmed paid sick leave, but four days later withdrew approval, alleged sick leave abuse, and withheld most of her November pay.

Lewis resigned on 30 November 2023 and referred a constructive dismissal to the CCMA. The commissioner found no dismissal and Lewis reviewed the award.

Issues in dispute and the Law

Whether Lewis resigned because continued employment had become intolerable due to the employer’s conduct (section 186(1)(e) LRA).

The objective test: whether the circumstances, viewed cumulatively, made continued employment intolerable and resignation a reasonable step.

The relevance of reasonable alternatives (e.g., grievance procedures) and exploring other remedies before resignation.

Court's application of the Law to the facts

The Court assessed the evidence and established a contextual framework. It found that there had been a communication breakdown but, standing alone, amounted to “mere unhappiness” given the employer’s operational crisis. Furthermore, the Court found that the employer terminating remote work was reasonable, lawful and based on a sound operational decision. The refusal to extend the deadline to return to work in-person at Lewis’s request added context but did not itself create intolerability.

The tipping point was the employer's handling of the sick leave issue. Despite a valid medical certificate and doctor’s letter, the employer –

• accused Lewis of malingering;
• withdrew a prior HR approval of paid sick leave;
• withheld 62% of her November salary; and
• failed to use its own verification mechanisms (e.g., contacting the doctor or treating the period as unpaid leave pending enquiry).

Given the employer’s accusatory stance, inconsistency, and failure to follow its own policies, internal procedures were not a reasonable alternative; they would likely have led to a foregone conclusion.

Court's findings 

Lewis was constructively dismissed. The employer’s conduct breached trust and confidence, making continued employment intolerable. The dismissal was unfair. The employer led no case on fairness.

The CCMA award was set aside and the Court awarded compensation of R310,571.19 (balance of November pay plus three months’ remuneration). No order as to costs. The Court declined the maximum 12 months due to limited period of loss and the applicant’s marketability and subsequent re‑employment as an estate agent.

Key takeaways for employers

First, universal return‑to‑office directives in response to acute operational pressures can be objectively reasonable, but they must be administered with engagement and consistency.

Second, when employees present medical evidence, employers should follow contractual and policy mechanisms to verify and manage absence, rather than defaulting to accusatory positions or docking pay prematurely.

Third, a reversal from acceptance to accusation, especially without investigation, can irreparably breach trust and tip workplace strain into intolerability.

Finally, the mere existence of internal grievance procedures does not immunise employers; where their conduct forecloses any realistic prospect of redress, resignation may be a reasonable response in law.