From Approved Leave to Accusation: When Sick Leave Becomes Constructive Dismissal

Executive Summary

An employer approved sick leave.
It later questioned the medical certificate, accused the employee of abuse, and reduced her salary in breach of its own policy.

The CCMA found no constructive dismissal.

The Labour Court disagreed.

The decisive issue was not remote work — it was trust.

Lewis v Commission for Conciliation Mediation and Arbitration & Others (2025)

Adele Lewis relocated from Gauteng to Cape Town during the COVID-19 pandemic and was permanently appointed as Chief Performance Officer in April 2021.

In November 2023, her employer withdrew remote working arrangements and required her to return to the Randburg office by 1 January 2024.

Lewis submitted a medical certificate citing anxiety and depression linked to work-related stress.

The employer initially approved paid sick leave.

It then reversed its position.

The medical certificate was questioned without investigation.
She was accused of abusing sick leave.
Her remuneration was reduced contrary to internal policy.

She resigned and referred a constructive dismissal dispute to the CCMA.

The CCMA ruled in favour of the employer.

On review, the Labour Court substituted the award.

The Legal Test

Section 186(1)(e) of the Labour Relations Act recognises constructive dismissal where an employee resigns because the employer rendered continued employment intolerable.

The enquiry is objective:

• Was the employment relationship rendered intolerable?
• Was the employer’s conduct the cause?
• Were reasonable alternatives available?

What the Court Found

1. Return-to-Office Directive

The instruction to return to the Randburg office was not unreasonable in light of operational pressures. On its own, it did not render the relationship intolerable.

2. Communication Breakdown

There had been strain in the employment relationship. However, this was not decisive.

3. The Turning Point

The employer’s handling of medical leave was pivotal.

It:

• Approved sick leave
• Later questioned the medical certificate without investigation
• Accused the employee of abuse
• Reduced her salary in breach of policy

The Court found that this shift — from approval to suspicion, combined with unilateral remuneration reduction — breached the duty of trust and confidence.

That breach rendered continued employment objectively intolerable.

4. Internal Remedies

The Court confirmed that employees are not required to exhaust internal remedies where doing so would be unreasonable or futile, particularly where employer conduct and deteriorating mental health make that unrealistic.

The Outcome

The Labour Court substituted the CCMA award and found constructive dismissal.

Lewis was awarded compensation of R310,571.19.

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Why This Matters

This was not a case about remote work or operational decisions.

It was about policy compliance, consistency and trust.

An employer is entitled to question potential abuse of sick leave. But it must do so properly — consistently, fairly, and in accordance with its own policies.

Employment risk rarely arises from the decision itself, it arises from how that decision is implemented.

Sound process, policy alignment and measured responses are not administrative formalities. They are risk controls.

If you are navigating complex employee relations issues, structuring the process correctly at the outset is almost always less costly than defending the consequences later.

About the Author
Samantha Govender is an admitted attorney and founder of Clause & Counsel, advising organisations on employment risk, workplace governance and commercial structuring.

This content is provided for general informational purposes only and does not constitute legal advice. No attorney-client relationship is created. Specific legal advice should be sought based on individual circumstances