28 January 2022
Employers are often at a loss when their employees are on paid sick leave and consequently too sick to attend work, but well enough to attend sporting or social events.
In Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Appeal Court recently dealt with this issue in a case that involved an employee being booked off sick from work, but still attending a rugby match, even though he was enjoying the benefit of paid sick leave.
The employee in question contacted his manager and informed that he won’t be able to attend work on the day due to him suffering from illness. It so happened that on the same day, during paid working time, the employee travelled 80 km’s between cities to attend a sporting event with his father. The travel duration was approximately 1 hour, whereas the employee would only have had to travel 20 minutes to get to work. The employee however did not go to work due to him alleging that he was too sick.
The employee reported to work the following day, and during a conversation between himself and his manager, the employee admitted to attending a sporting event. The employee claimed that he had recovered from his illness before he went to the sporting event.
The employee was subjected to a disciplinary inquiry and was found guilty of breaching company policies and procedures by abusing authorised sick leave, for which he had been paid. The employee was found guilty as charged and subsequently dismissed.
Following the hearing, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The CCMA arbitrator found that the employee’s dismissal was procedurally and substantively unfair and reinstated him with full back pay.
The arbitrator held that the employee was not charged with dishonest conduct and therefore the trust relationship had not been broken. The arbitrator also held that the employee did not hide the fact that he attended a sporting event whilst he was on paid sick leave. Also carrying weight in the arbitrator’s ruling, was the fact that the employee did not have any previous disciplinary warnings.
The company launched a review application of the award. On review the Labour Court disagreed with the arbitrator’s decision on procedural unfairness but agreed that the employee’s dismissal was substantively unfair.
The Labour Court held that the company had failed to prove on a balance of probability that the employee acted dishonestly, or that there was a policy in place that required an employee who had been booked off sick to return to work when they feel better.
An appeal was lodged by the company challenging the Labour Court’s decision. The Labour Appeal Court (LAC) considered the charges that were brought against the employee. The employee had been charged with gross misconduct, essentially for abusing sick leave.
During cross-examination the employee admitted that his actions were misleading, and that it was not honest being paid for the duration of the day that he was attending a sporting event. The employee further admitted that his actions did not set a good example to those that report to him.
The LAC made a finding based on the fact that even though the employee was not specifically charged with dishonesty, he still acted dishonestly in not reporting for work on the basis that he was too ill to perform his duties but then travelled for at least an hour to attend a sporting event, knowing full well that he would be paid for the time he spent at the sporting event.
The LAC found that the arbitrator at the CCMA, had in fact committed an error, which was subsequently also repeated in the Labour Court.
In considering the arbitrator’s order of reinstatement, on the basis that the employee’s conduct did not break the trust relationship beyond repair, the LAC found that this lenient approach to dishonesty cannot be tolerated.
The employee in the matter was in a senior position and confirmed that his behaviour was not a good example to those that report to him. The employee was dishonest to the extent that he expected to get away with enjoying a sporting event while enjoying paid sick leave.
The LAC found further that it was 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. The LAC found that it was clear that the trust relationship had broken down and that dismissal was the appropriate sanction.
This judgment is an important one as it sends a message to Commissioners of the CCMA that they should not take an overly technical approach to the charges brought against an employee and that they should adopt a holistic and common sense approach in considering the true impact of an employee’s actions on a continued trust relationship.
Employees have the common law duty to conduct themselves with honesty and integrity in all their dealings with their employer. Trust carries substantial weight in the employment relationship, and a broken trust relationship renders a continued employment relationship intolerable.
Contact Invictus on 0861 737 263 for advice on sick leave abuse, so we can ensure that you are properly equipped in dealing with the situation in a risk-free and compliant manner.
