LEWIS v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION AND OTHERS (LEAVE TO APPEAL) [2026] ZALCCT 72

Date of Judgment & Seat of Court: 23 April 2026; Labour Court of South Africa, Cape Town

Name of Judge(s): MacKenzie AJ

Summary of Factual Matrix: 

This was an application for leave to appeal against an order made on 25 November 2025 finding the applicant's constructive dismissal claim successful. 

The third respondent (employer) sought leave to appeal on multiple grounds, including that: the finding of intolerability was unsustainable; the sick note dispute was wrongfully elevated to intolerability; the applicant's failure to lodge a formal grievance was not properly considered; the salary dispute could have been pursued separately; Albany Bakeries principles were misapplied; alternatives to resignation were not properly weighed; the finding of futility was speculative; the reasoning regarding the "final straw" was contradictory; certain issues were not raised in the CCMA referral; the unpaid salary award was not claimed or proven; and the resignation was pre-planned.

Summary of Findings:

"[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. 

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. 

5.3 A compelling (meaning 'cogent; strong; convincing') 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. There is, however, no closed list and each case turns upon its own facts."

"[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."

Applying the stringent test under section 17(1)(a) of the Superior Courts Act, the Court found that none of the ten grounds of appeal demonstrated a reasonable prospect that another court would reach a different conclusion. The employer's conduct in questioning the medical certificate without investigation, accusing the applicant of malingering, withdrawing acceptance of medical evidence, and withholding remuneration cumulatively destroyed the trust relationship. The absence of a formal grievance did not negate intolerability where direct engagements with decision-makers proved futile. The salary dispute formed part of the composite conduct rendering employment intolerable, not a separate claim.

Order:

"1. The application for leave to appeal is dismissed.

 2. There is no order as to costs."