By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Constructive dismissal occurs where the employee, who wanted to keep his/her job, nevertheless resigns because the employer made continued employment unbearable.
The law requires the employee to prove that:
- He/she resigned because the employer unjustifiably made continued employment unbearable; and
- The employer’s action was due to its own fault; and
- The employer’s conduct was unreasonable and unfair
- There was no reasonable alternative at the time but for the employee to resign in order to escape the unbearable circumstances.
In the case of Lewis vs the CCMA and Others (Lex Info 25 November 2025 (Labour Court Case number C302/2024) the employer experienced severe financial losses. To stabilise the business the employer instructed all employees to return to working from its Randburg office. The employee, Ms Lewis had been working from home in Cape Town at the time and was given a short deadline to return to Randburg.
After her request for an extension of time was denied, she submitted a medical certificate evidencing that she needed sick leave due to depression. The employer indicated that it did not consider her illness to be genuine but later relented and granted her the sick leave. However, shortly thereafter the employer withdrew its sick leave consent, accused Lewis of malingering and threatened to discipline her. The employer also failed to pay Lewis for the period of her absence.
It is important to note that the employer at no stage provided proof that Lewis’s sickness had been fabricated. Neither did it explain why it disbelieved her.
Lewis resigned and lodged a constructive dismissal dispute at the CCMA which found that Lewis’s termination had not been unfair. She therefore took the arbitrator’s decision on review to the Labour Court.
The employer argued that Lewis had been obligated to use all reasonable alternatives before resigning on the basis of constructive dismissal, and that Lewis should have utilised the employer’s grievance procedure. The Court agreed with this in principle However, it found that the employee had been justified in believing, in the specific circumstances of this case, that the grievance outcome would have gone against her. The Court arrived at this conclusion because the employer:
- had ignored its own rule providing for verification of unpaid leave,
- had failed to provide any reasons for its belief that Lewis had feigned illness,
- had granted the sick leave and then swiftly retracted it,
- had accused the employee of malingering without providing reasons and
- had thus destroyed the trust relationship.
This conduct of the employer legitimated Lewis’ constructive dismissal claim. Furthermore, the employer had failed to provide any evidence to show that the employee’s dismissal had been fair. The Court therefore ordered the employer to pay the employee R310 571.19.
In the light of this finding employers should ensure that those responsible for employment matters are properly trained in the management of sick leave claims, in the dangers of constructive dismissals and in the need to bring to the CCMA and to the Courts proof to support the employer’s case.
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