Although Covid-19 is now just over three years behind us, some employers are still struggling to get it right. Since the pandemic, many employees whose duties permit have continued to work from home, either permanently or on a hybrid basis. Yet numerous employers have since insisted on a full return to the office, sometimes sparking disputes.
A recent Labour Court judgment shows that although employers are generally entitled to make operational decisions such as recalling staff to the office, the way those decisions are implemented – particularly when health issues arise – can be decisive.
The case is a cautionary tale about how quickly trust can unravel.
The Labour Court reviewed and set aside an award by the Commission for Conciliation, Mediation and Arbitration, finding that Adele Lewis had been constructively dismissed. She was awarded R310 571.19, comprising unpaid salary and three months’ remuneration.
From trusted executive to breaking point
Van de Venter Mojapelo operates a large debt-collection business with about 600 employees across Gauteng and KwaZulu-Natal. Lewis joined the company in March 2019 as a revenue manager on a fixed-term contract, reporting directly to the chief executive. Over time, she progressed into senior management.
During the Covid-19 lockdown in 2020, Lewis asked to work remotely and relocate to Cape Town after her son was accepted into a prestigious school. The company agreed, paid for her relocation, and allowed her to work remotely.
What later became contentious was whether this arrangement was permanent or merely a temporary Covid concession. Lewis believed the relocation was permanent. The company maintained it was conditional and could be withdrawn.
Lewis settled in Cape Town, buying a home, and enrolling her children in local schools and university. In April 2021, she signed a new permanent contract as chief performance officer and became a member of the executive committee, reinforcing her belief that remote work was now part of her role.
A business under pressure
In 2023, the company lost several major clients, resulting in a monthly revenue drop of about R1.5 million. As pressure mounted, Lewis said her relationship with the CEO deteriorated. Communication became more formal and critical, her requests for clarity went unanswered, and she felt increasingly excluded from decision-making.
An urgent executive committee meeting was held in October 2023 to deal with the crisis. Possible retrenchments were discussed, and Lewis asked whether her role was at risk. She was told that final decisions had not yet been made.
At the same meeting, the executive committee was dissolved and replaced with a revenue committee. Lewis was excluded from this new structure.
Shortly afterwards, the company announced that all remote work would be terminated. Senior staff were instructed to return to the office by 1 January 2024. Lewis, the only executive based in another province, was told she would have to return to Randburg.
Return to office – and rising tension
Lewis requested an extension to March 2024, citing her personal circumstances. The request was refused. She was told the decision was board-mandated and applied across the board.
After further exchanges with HR, Lewis confirmed that she understood she was expected to return in January.
Around the same time, she contacted payroll to ask how many sick-leave days she had available, explaining that she needed an operation. Days later, her doctor booked her off on medical leave until 23 December 2023 for anxiety and depression linked to work-related stress.
Initially, HR acknowledged the medical certificate and confirmed that Lewis would be on paid sick leave. Four days later, the company abruptly changed course.
Sick leave becomes the flashpoint
Without conducting any investigation, the employer accused Lewis of malingering, withdrew her paid sick leave, and warned that disciplinary action could follow. Most of her November salary was withheld, and she was paid for only eight days.
The company rejected her allegations of harassment and did not seek an independent medical assessment, despite her doctor inviting it to engage.
For Lewis, this was the breaking point. She believed she was being treated as dishonest during a period of genuine illness, and there was no realistic prospect of resolving the dispute internally.
On 30 November 2023, she resigned with immediate effect, stating that her working conditions had become intolerable. On the same day, she referred a constructive dismissal dispute to the CCMA, citing forced relocation, broken assurances, and the handling of her sick leave.
The CCMA commissioner found that there had been no dismissal. Lewis took the award on review.
How the Labour Court saw it
Acting Judge PS MacKenzie assessed the matter holistically, focusing on four issues: the breakdown in communication, the return-to-office directive, the handling of sick leave, and whether Lewis had any reasonable alternative to resignation.
The court accepted that communication between Lewis and the CEO had deteriorated between August and October 2023. However, given the company’s financial distress, this was not unexpected and did not, on its own, make continued employment intolerable.
The Court also found that the decision to end remote work was reasonable. Faced with operational pressure, the employer was entitled to require senior staff to return to the office. The January 2024 deadline applied to everyone and was not targeted at Lewis, even though it affected her more severely.
What changed everything was the employer’s response to Lewis’s sick leave.
The Court found that Lewis had acted properly: she informed her employer, submitted a valid medical certificate, and later provided a detailed letter from her doctor confirming work-related anxiety and depression. The employer initially accepted this and confirmed that her leave would be paid.
Its sudden reversal – accusing her of malingering, threatening discipline, and docking 62% of her salary – was unjustified. The judge noted that the company’s own policies allowed for less drastic options, such as verifying the certificate, contacting the doctor, or placing her on unpaid leave pending an inquiry.
Instead, the employer chose confrontation. By questioning Lewis’s integrity and ignoring its own procedures, it breached the implied duty of mutual trust and confidence. A routine sick-leave issue became, in the Court’s words, the point at which the employment relationship fractured beyond repair.
The Court rejected the argument that Lewis should have pursued internal grievances before resigning, finding that this would have been futile in light of the employer’s stance. It also held that the arbitrator was required to consider the real dispute as it emerged from the evidence, not only what appeared in the CCMA referral form.
Taken together, the events crossed the threshold for constructive dismissal. The decisive factor was not remote work or strained communication, but the employer’s handling of Lewis’s illness.
Because the employer led no evidence to justify the fairness of the dismissal, the CCMA award was set aside, and Lewis was found to have been unfairly constructively dismissed.
Lessons for employers
In an analysis of the case published on CDH’s website, Ayesha Karjieker, an associate in CDH’s employment law practice, says the judgment offers several important lessons for employers.
She notes, first, that universal return-to-office directives adopted in response to acute operational pressures can be objectively reasonable, but only if they are implemented with proper engagement and applied consistently.
Second, where employees submit medical evidence, employers should rely on the verification and absence-management mechanisms set out in their contracts and policies, rather than defaulting to accusations or prematurely docking pay.
Third, Karjieker warns that a shift from acceptance to accusation – particularly in the absence of any investigation – can irreparably damage trust and push an already strained working relationship into the realm of 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.”
