- with Senior Company Executives, HR and Finance and Tax Executives
- in Canada
A recent Labour Court judgment has provided important guidance for employers navigating remote work arrangements, employee wellness and the handling of sick leave disputes.
The case of Adele Lewis v the CCMA & 2 Others involved an employee who resigned and alleged a constructive dismissal after her employer terminated remote work, denied her sick leave and reduced her salary. In an unreported judgment, the Labour Court in Cape Town ultimately found in favour of the employee, highlighting the critical importance of maintaining mutual trust and confidence in the employment relationship.
The employee, a senior executive at a large debt collection firm, relocated from Gauteng to Cape Town during the COVID-19 pandemic with the employer's approval. While the employee viewed this as a permanent move, the employer considered it a temporary arrangement, subject to operational requirements. In late 2023, following significant business losses, the employer decided to end all remote work and required all staff to return to the office within two months.
The employee, whose family and home were now in Cape Town, requested an extension and permission to continue working remotely until March 2024. This request was denied, and she was instructed to return to Gauteng by January 2024.
The evidence before the Court demonstrated that a gradual deterioration in communication between the employee and management followed, particularly as the company faced financial pressures. The employee felt increasingly excluded from key decisions and management functions, and her requests for clarity and support were often ignored or dismissed.
Shortly after the return-to-office directive, the employee submitted a medical certificate for anxiety and depression, supported by her doctor. Initially, HR acknowledged her sick leave and indicated it would be paid. However, the employer soon reversed this position. She was accused of malingering, and most of her salary for November 2023 was withheld. The company also threatened disciplinary action for alleged abuse of sick leave, despite not seeking independent medical verification.
The employee resigned with immediate effect, citing intolerable working conditions and referred a constructive dismissal dispute to the CCMA. The commissioner initially found in favour of the employer, but on review, the Labour Court overturned this decision.
Key findings of the Labour Court included that:
- The employer's abrupt reversal on sick leave, accusatory communications (in the absence of any clear evidence to support the accusations), and salary reduction constituted a breach of the implied term of mutual trust and confidence in the employment contract.
- The employer failed to follow its own internal procedures for verifying sick leave and addressing grievances.
- The employee's resignation was not voluntary but was a reasonable response to intolerable conditions created by the employer's conduct.
- The existence of internal grievance procedures did not constitute a reasonable alternative remedy in the circumstances, given the employer's conduct and the employee's mental health.
The Court awarded the employee compensation equivalent to three months' salary plus the unpaid portion of her November 2023 remuneration, totaling ZAR310,571.19.
This judgment underscores several key lessons for employers:
- Remote work arrangements: Employers should clearly document the terms of any remote work arrangement and any conditions for its termination, especially when relocation is involved.
- Handling of sick leave: Employers must follow their own policies and act with compassion and consistency when employees present medical certificates, particularly for mental health issues. Employers are entitled to verify the authenticity of a medical certificate, for example by contacting the medical practice to confirm that the employee was seen by the relevant doctor. However, in the absence of evidence to suggest something untoward, employers should not automatically question the integrity or motives of an employee who presents a medical certificate citing mental health concerns or be hasty to make accusations against the employee.
- Communication and grievance procedures: Open, timely and good-faith communication is essential. Employers should ensure that grievance procedures are accessible and that employees are not penalised for raising legitimate concerns.
- Mutual trust and confidence: While the burden of proof on an employee in a constructive dismissal claim is high, and claims of intolerability are notoriously difficult to prove, actions that undermine trust can expose employers to constructive dismissal claims. These actions include abrupt policy changes or reversals, unfounded accusations, excluding an employee and the inconsistent application of rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
