The LAC found that it was clear that the trust relationship had broken down and that dismissal was the appropriate sanction.
“Sick leave” and the lenient approach to dishonesty
January 25, 2022 by
admin
In Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Appeal Court considered the consequences that flow from an employee being too sick to attend work, but well enough to attend a rugby match, all while enjoying the benefit of paid sick leave.
The facts:
The case involved an employee who informed his manager that he was unable to attend work because he was too ill, however on the same day and during working hours, attended a rugby match.
On the employees return to work the next day, he was questioned by his Manager as to his whereabouts on the previous day. The employee had admitted that he had been to a rugby match but, in his defence, stated that he had recovered from his illness before he attended the rugby match.
The employee was charged and found guilty with gross misconduct for breaching company policies and procedures by abusing authorised sick leave, for which he had been paid.
The employee subsequently referred an unfair dismissal dispute to the CCMA.
At arbitration, it was found that the employee was not charged with dishonesty therefore the trust relationship had not broken down. Furthermore, the employee did not try to hide the fact that he attended a rugby match while he was on sick leave. In addition, it was found that no evidence had been led about any previous warnings that were issued to the employee in this regard. As such, the arbitrator found that the employee’s dismissal was procedurally and substantively unfair and reinstated him with full back pay.
The company launched a review application. On review the Labour Court agreed that the employee’s dismissal was substantively unfair, but disagreed on the decision regarding procedural unfairness.
The company appealed the Labour Court’s decision.
The employee had admitted that it was dishonest of him to be paid for that portion of the day that he attended the rugby match. He had also admitted that his conduct did not set a good example for his subordinates.
The LAC found that while the employee was not specifically charged with dishonesty, “manifestly, (he) 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, knowing full well that he would be paid for the day”.
In considering the order of reinstatement, on the basis that the employee’s conduct did not render a continued employment relationship impossible, the LAC found that “this lenient approach to dishonesty cannot be countenanced”.
“The employee was employed in a relatively senior position, he confirmed that his behaviour was not a good example for his subordinates, and he was “palpably” dishonest in that he expected to get away with enjoying a rugby match while enjoying the benefit of paid sick leave”.
“It was this dishonest conduct that negatively damaged the trust relationship. The LAC found further that it was manifestly justifiable for the company to adopt the approach that the employee was required to act with integrity and abide by the company’s policies, procedures and codes”.
