Labour Courts are Sick of Dishonesty
Case:
South African Revenue Services (SARS) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR 2243/21) [2023] ZALCJHB 222 (21 July 2023).
Facts:
Mr. Mathebula was employed as a Junior Investigator by SARS.
On or about 7 September 2020, Mathebula advised his supervisor, Mr. Mantsho, that he was not
feeling well. Mantsho accepted that Mathebula was not well and excused him from attending work. On 8 September 2020, Mathebula again informed his employer that he would be unable to attend work due to an undisclosed illness. Mathebula was further absent from work for the remainder of the week and, upon his return, produced a medical certificate for the period of 9 to 11 September 2020, excusing him from work.
Unbeknown to Mathebula, Mantsho spotted Mathebula “dancing and singing” at an EFF protest against Clicks on the 7 and 8 September 2020, when he had said he was sick. Mantsho gathered visuals from YouTube, and he confronted Mathebula about the discovery he made.
Mathebula’s defence was simply that he was indeed ill during the period of his sick leave, notwithstanding his attendance at the political protest, and he was not bedridden. Mathebula was served with a disciplinary notice and charged with dishonesty. He was later found guilty and dismissed.
CCMA
Mathebula referred an unfair dismissal dispute to the CCMA. The Commissioner found that on the evidence of the medical certificate produced it was evident that Mathebula was ill on at least 9 to 11 September 2020 and probably before, as “illness tends to progress”. The Commissioner found that Mathebula admitted that he had indeed attended the protest action on 7 and 8 September 2020 and that a medical certificate served as proof of Mathebula’s incapacity and led the Commissioner to find that Mathebula’s intention was clearly not to mislead his employer.
The Commissioner found the dismissal to be substantively unfair and ordered reinstatement and seven months’ loss of salary.
Labour Court
Aggrieved by the award, the employer launched a review application to the Labour Court.
The Labour Court rejected the reasoning of the Commissioner finding that dishonest intent could be inferred from the circumstances. The Labour Court found that the Commissioner engaged in speculation rather than weighing the evidence on the balance of probabilities and, by doing so, the Commissioner committed a gross irregularity, and the award was one which a reasonable decision maker would have arrived at.
The Labour Court’s reasons were that in all probability Mathebula was not incapacitated due to illness but that he was in fact malingering in order to attend the protest action while being paid for the days. The Labour Court also found that Mathebula abused the employer’s sick leave policy.
Although Mathebula’s medical certificate was produced and accepted for the period of 9 to 11 September 2020, no evidence was presented to prove that Mathebula was indeed ill between 7 and 8 September 2020 and employees alleging illness must prove that they were ill, if necessary, by way of an affidavit from a medical doctor.
The LC pointed to a similar case dealt with by the LAC, of Woolworths v CCMA and others1. As the principles outlined in the Woolworths case find application in the present situation. In this case the employee acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties but then travelled for at least an hour to support his local rugby team. In that case the LAC stated that the lenient approach to dishonesty could not be countenanced.
The above situation is not dissimilar with the current situation. Despite reporting that he was ill, Mathebula attended a protest action where he “sang and clapped hands” in support of the action.
The LC concluded that the evidence strongly suggested that Mathebula was not actually sick but was pretending to be ill to be available for the protest action. The fact that he was able to clap hands and sing during the protest indicated that he was physically capable of performing his duties.
Conclusion
This judgment serves as an important reminder to employees that a sick leave entitlement is not simply there for the taking and that employees are to act with the utmost honesty and integrity in this regard. Commissioners are cautioned to carefully weigh the evidence and avoid speculation, and in particular, that dishonesty cannot be condoned.
1 (2022) 43 ILJ 839 (LAC)
