By Sibusiso Dube, Partner, Bowmans
In a recent Labour Court judgment in the case of South African Revenue Services vs CCMA and Others, the Court found the dismissal of an employee who was dishonest about his sick leave, to be substantively fair. In reaching its decision, the Court made reference to the Woolworths v CCMA and Others case where an employee was dismissed after he applied for sick leave and but it was later established that he had travelled to support his local rugby team.
The employee, who was employed as a junior investigator by SARS, had texted his supervisor on the morning of 7 September 2020 to indicate that he was not feeling well and would complete a sick leave application. As a result, his supervisor excused him from work for the day. The following day, the employee again represented to his supervisor that he was still not feeling well and continued to be excused from work. On 9 September 2020, the employee allegedly consulted a doctor who booked him off from 9 to 11 September 2020.
Whilst watching the 7pm news on television, the employee’s supervisor spotted the employee participating in a protest action called by the EFF against Clicks on the two days he had called in sick.
The employee was subsequently charged for dishonesty and dismissed.
Aggrieved by his dismissal, the employee referred an unfair dismissal claim to the CCMA. The Commissioner found that his dismissal was substantively unfair. The matter was thereafter taken on review by SARS.
Labour Court finding
The Labour Court found that the employee had acted dishonestly. In this regard, it was stated that if the employee was well enough to sing and clap, then he must have been well enough to tender his services.
The impression created by the employee was that he was not able to work and wanted to be excused from performing his contractual duties; however, he was not being truthful about the true state of his health. The employee wanted to engage in a protest action and was of the view that his employer would not have permitted this if he had been honest about his intentions. As a result, he misrepresented that he was not fit to work. In addition, the employee only sought medical attention two days after the date of 7 and 8 September. Nothing in the medical certificate confirmed that he was sick on those days.
Moshoana J also remarked about the fact that although the medical certificate was accepted by the employer, it was unsubstantiated by an affidavit from the medical practitioner who allegedly treated the employee.
The Court held that the facts in this case were similar to those in the Woolworths case, which was decided by the Labour Appeal Court. Accordingly, the principles in the Woolworths case find application in the present matter. Consequently, the arbitration award was set aside, and the employee’s dismissal was found to be substantively fair.
Employees are cautioned against making misrepresentations about their health when applying for sick leave. Honesty is at the heart of the employment relationship and any misrepresentation to an employer may be sufficient to cause a breakdown in the trust relationship.
It is also important to note that a medical certificate on its own may not always be sufficient to prove that an employee was in fact too ill to tender their services. Medical certificates are regarded as hearsay evidence and in order to be admissible, an employee may be required to produce an accompanying affidavit from the medical practitioner, or the medical practitioner may be required to testify to the truthfulness of the medical certificate.
It is therefore advisable for employees to avoid any acts of dishonesty and rather apply for annual leave where they seek to take a day off to engage in activities outside work. Employers are well within their rights to implement disciplinary action where employees are found to be dishonest.