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[2026] ZALCCT 72
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Lewis v Commission for Conciliation, Mediation and Arbitration and Others (Leave to Apeal) (C302/2024) [2026] ZALCCT 72 (23 April 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not reportable
Case
No: C302/2024
In
the matter between:
ADELE
LEWIS
Applicant
and
COMMISSION
FOR CONCILIATION,
First Respondent
MEDIATION AND
ARBITRATION
GERT
VAN DER BERG N.O.
Second Respondent
VAN
DE VENTER MOJAPELO (PTY) LTD
Third Respondent
Delivered
:
23 April 2026
JUDGMENT
(LEAVE TO APPEAL)
MacKENZIE,
AJ
Introduction
[1]
The third respondent seeks leave to appeal against the order that I
made on 25 November 2025.
[2]
The application for leave to appeal is dated 3 December 2025.
However, the application was only brought to my attention
on 12
February 2026 upon receipt of the third respondent’s written
submissions in support of its application for leave to
appeal.
[3]
The third respondent’s grounds of appeal can be summarised
thus.
3.1
First, the Court’s conclusion of intolerability is
unsustainable on the accepted facts.
3.2
Second, the Court wrongfully elevated the sick note dispute into
intolerability.
3.3
Third, the Court failed to give proper consideration and weight to
the fact that the applicant
did not lodge a grievance and resigned
before the issue could be addressed.
3.4
Fourth, the Court did not properly consider that the applicant’s
salary dispute flowing
from the sick note dispute could have been
pursued as a separate substantive claim and grievance.
3.5
Fifth, the Court misapplied the principles stated in
Albany
Bakeries
.
3.6
Sixth, the Court failed to properly weigh the alternatives available
to resignation that
were open to the applicant.
3.7
Seventh, the Court speculated in concluding that any grievance
process would be futile.
3.8
Eighth, the Court’s reasoning in concluding that the sick note
dispute was the final
straw is internally contradictory.
3.9
Ninth, the sick note and communication issues were not raised in the
CCMA referral.
3.10 Tenth,
the Court erred in awarding the applicant her unpaid salary for
November 2023 since that was neither claimed
in the CCMA nor proven
by the applicant.
3.11 Finally,
the evidence bore out that the applicant’s resignation was
pre-planned, further supporting the inappropriateness
of
compensation.
The
test for leave to appeal
[4]
Leave to appeal is governed by
section 17(1)(a)
of the
Superior
Courts Act, 2013
and may only be granted where the Court is of the
opinion that either (i) the appeal would have a reasonable prospect
of success;
or (ii) there is some other compelling reason why the
appeal should be heard.
[5]
The main principles governing leave to appeal are the following.
5.1
The
threshold is that a different court ‘
would
’
come to a different conclusion, not that it ‘
could
’
do so. The test is thus a stringent one.
[1]
5.2
An
applicant for leave to appeal must demonstrate, on proper grounds, a
realistic prospect of success. It is not enough that the
case is
arguable or not hopeless. There must be a sound and rational basis to
conclude that another court would likely reach a
different result.
[2]
5.3
A
compelling (meaning ‘
cogent;
strong; convincing
’
[3]
)
reason may lie in an important question of law or a discrete issue of
public importance with wider impact, but the merits nevertheless
remain vitally important and often decisive.
[4]
There is, however, no closed list and each case turns upon its own
facts.
Analysis
and discussion
Intolerability and the
sick note dispute
[6]
The first, second and eighth grounds are closely related. They
concern the finding that the employment relationship had
become
intolerable.
[7]
As explained in the main judgment, the breakdown in communication and
the termination of remote work were not, in themselves,
determinative
of intolerability. However, they provided important context
demonstrating that the employment relationship had become
fragile. It
was against that backdrop that the third respondent’s conduct
in relation to the applicant’s medical condition
must be (and
was) assessed.
[8]
Upon receipt of the medical certificate and accompanying information,
the third respondent became aware that the applicant
was suffering
from stress, anxiety and depression. At that point, it was obliged to
respond with an appropriate degree of care
and sensitivity. Instead,
the third respondent:
8.1
questioned the legitimacy of the medical certificate without proper
investigation;
8.2
accused the applicant of malingering and dishonesty;
8.3
withdrew an earlier acceptance of the medical explanation; and
8.4
withheld the bulk of the applicant’s salary.
[9]
This was done without taking any steps whatsoever to verify the
medical evidence or to engage constructively with the
applicant’s
condition. The cumulative effect of this conduct, viewed objectively,
was to destroy the trust relationship.
The applicant was effectively
accused of dishonesty at a time when she was, based upon undisputed
medical evidence, medically unfit
for work, and was deprived of
remuneration without due process.
[10]
In those circumstances, I was satisfied that there is no reasonable
prospect that another court would find that the applicant’s
continued employment was not rendered intolerable.
[11]
Accordingly, I consider that these grounds have no reasonable
prospect of success.
Failure
to lodge a grievance
[12]
On the third ground, the absence of a formal grievance is not
decisive. It is common cause that the applicant engaged
directly with
both Mr Woznica (the third respondent’s chief executive
officer) and Mr Louw (the third respondent’s
human resources
executive) in an attempt to resolve the situation. Those engagements
did not result in any meaningful resolution.
Instead, the third
respondent persisted in its position, including maintaining
allegations of dishonesty and withholding remuneration.
In those
circumstances, the absence of a formal grievance does not undermine
the finding of intolerability. Accordingly, I consider
that this
ground has no reasonable prospect of success.
Availability
of alternative remedies
[13]
On the fourth ground, the third respondent contends that the salary
dispute could have been pursued separately. This
submission
artificially disaggregates what was, in reality, a composite course
of conduct. The withholding of remuneration was
not a neutral or
isolated dispute; it formed part of the very conduct that rendered
the employment relationship intolerable. The
third respondent’s
suggestion that the applicant ought to have pursued a separate claim
ignores the cumulative impact of
its conduct as employer.
Accordingly, I consider that this ground likewise has no reasonable
prospect of success.
The
decision in Albany Bakeries
[14]
On the fifth ground, the third respondent relies on
Albany
Bakeries
to argue that the applicant was required to exhaust
internal remedies. That submission is misplaced. I do not read the
decision
to lay down the principle of an inflexible obligation to
pursue internal remedies
regardless of the circumstances
. The
enquiry remains whether a
reasonable
alternative to
resignation existed. It serves no purpose and would be an exercise in
formality for an employee to pursue all avenues
of recourse where it
is evident from the particular facts of the matter that those avenues
have no reasonable prospect of resolving
the issue.
[15]
In circumstances where the employer had accused the applicant of
dishonesty, withdrawn acceptance of medical evidence,
and withheld
remuneration without investigation, as stated in the main judgment,
the availability of a theoretical remedy does
not negate the
existence of intolerability. Accordingly, I consider that this ground
has no reasonable prospect of success.
Alternatives
to resignation and alleged futility
[16]
The sixth and seventh grounds concern the availability of
alternatives and the alleged speculative finding of futility
regarding their outcome. However, these submissions overlook the
undisputed evidence that the applicant attempted to engage the
relevant decision-makers without success. The conclusion that further
internal processes would not have provided effective relief
was not
speculative, but grounded in the conduct already exhibited by the
third respondent. Accordingly, I consider that these
grounds likewise
have no reasonable prospect of success.
CCMA
referral
[17]
On the ninth ground, the third respondent contends that certain
issues were not raised in the CCMA referral and that
the Court should
have taken account of this evidentiary consideration. In my view, no
negative inference can be drawn from the
level of detail contained in
the referral form. CCMA referral forms are not pleadings and are not
intended to set out a comprehensive
factual or legal case. The
purpose of the referral is to trigger the dispute resolution process,
not to define the issues with
precision. Accordingly, I consider that
this ground likewise has no reasonable prospect of success.
Compensation
[18]
On the tenth ground, the third respondent contends that the Court
erred in awarding the compensation relating to the
unpaid balance of
the applicant’s salary for November 2023. As stated in the main
judgment,
section 194(1)
empowers the Court to award compensation
that is just and equitable. The award was not made as a discrete
claim for unpaid salary,
but as part of a broader compensatory
determination flowing from the unfair constructive dismissal.
Accordingly, I consider that
this ground also has no reasonable
prospect of success.
Alleged
pre-planned resignation
[19]
Finally, the third respondent contends that the applicant’s
resignation was pre-planned. However, the undisputed
evidence was
that the applicant only became registered as an estate agent in
December 2023, after her resignation. The existence
of subsequent
employment does not, without more, negate intolerability or render
compensation inappropriate. Accordingly, I consider
that this ground
too has no reasonable prospect of success.
Conclusion
and costs
[20]
The third respondent’s submissions ultimately amount to a
disagreement with the conclusions reached in the main
judgment. While
it is conceivable that another court might approach aspects of the
matter differently, the test is not whether
it could do so but
whether it would come to a different conclusion. Having regard to the
evidence and the applicable legal principles,
I am not persuaded that
another court would do so. Nor is there a compelling reason why the
appeal should be heard.
[21]
Accordingly, the application falls to be dismissed.
[22]
Regarding costs, despite the matter not meeting the threshold for
leave to appeal, I consider it fair that there be no
order as to
costs.
Order
[23]
In the result, the following order is made:
1. The application
for leave to appeal is dismissed.
2. There is no
order as to costs.
PS
MacKenzie
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant:
CS Bosch
Instructed
by:
Carlo Swanepoel Attorneys Inc (Mr E Ramos)
For
the third respondent: S Snyman of Snyman Attorneys
[1]
Seatlholo and
Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers’
Union and Others
(2016) 37 ILJ 1485 (LC) at para 3.
[2]
Member
of the Executive Council for Health, Eastern Cape v Mkhitha and
Another
[2016]
ZASCA 176
(25 November 2016) at para 16;
City
Tshwana Metropolitan Municipality v Kleinot N.O. and Others
(Leave to Appeal) [2025] ZALCJHB 314 (15 July 2025) at para 8.
[3]
Erasmus
Superior Court Practice
RS 5, 2025, D-108.
[4]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) at para 2.