If you abuse your sick leave by reporting ill and taking off work when you are not ill, don’t expect the courts to come to your rescue if your employer finds out about your dishonesty and fires you.
A recent case that came before the Labour Court and its reference to an earlier case show that taking even a single “free” day off can put your job at risk.
An employee of the South African Revenue Service (Sars), Mr M, sent a text message to his supervisor saying he was not feeling well. The supervisor excused him from work and advised him to seek medical attention when, the following day, the employee called in saying he was still sick.
On the third day of being off work, Mr M allegedly went to a doctor and obtained a medical certificate booking him off for a further three days.
However, when watching the evening news on television, the supervisor recognised Mr M participating in a political protest on two of the days he was “off sick”.
He confronted Mr M, asking what he was doing singing and clapping hands during the protest when he was supposed to have been at home sick. The employee could not answer satisfactorily. He was charged with gross dishonesty and dismissed following a disciplinary hearing.
Mr M took his case to the Commission for Conciliation, Mediation and Arbitration (CCMA), which held that his dismissal was unfair and ordered his reinstatement.
Unhappy with the outcome, Sars applied to the labour court to have the arbitration award reviewed and set aside.
After examining the evidence presented before the CCMA, the court said the facts showed that Mr M had been dishonest, irrevocably damaging the employer-employee trust relationship. The reasoning was as follows:
- Mr M participated in the protest action on a day in which he “unashamedly and audaciously” indicated to Sars that he was not feeling well.
- It was apparent that although he was not feeling well enough to attend to his contractual duties, he felt well enough to participate in a protest action.
- In light of uncontested evidence of participation in the protest action, it axiomatically followed that he was not so indisposed that he could not attend work.
- The case referred to an earlier matter, which was finally decided in the Labour Court of Appeal: Woolworths (Pty) Ltd v CCMA and Others (2021). In this case, Woolworths charged an employee with gross misconduct for abusing his sick leave entitlement when he was caught attending a rugby match on the day that he alleged he was sick.
The CCMA and the Labour Court decided that the dismissal was unfair. However, the Labour Appeal Court ruled otherwise – the dismissal was appropriate.
The court stated: “This lenient approach to dishonesty cannot be countenanced. The (employee) held a relatively senior position within the organisation. He was palpably dishonest, even on his own version. He expected to get away with the enjoyment of attendance at a rugby match on the basis of claiming sick leave and then enjoying the benefits thereof. This is dishonest conduct of a kind which clearly negatively impairs upon a relationship of trust between an employer and employee. It is clear that the relationship of trust as a result of his initial unreliability and now dishonest conduct had broken down.”
In the Sars case, the judge set aside the arbitration award issued by the CCMA and replaced it with an order that the dismissal of Mr M was substantively fair.
In their report on the case, Sandile July, the head of employment, and Sandile Tom, the director at Werksmans Attorneys, say: “Faking illness and taking sick leave as a result of such fake illness is gross dishonesty which destroys the trust relationship. Sick leave fraud is a serious disciplinary offence and will in all likelihood result in the dismissal of the employee. In the current environment where job opportunities are shrinking and sometimes hard to find, we encourage employees to act honestly insofar as any form of leave is concerned. Equally, employers should have no tolerance for such behaviour.”
If you have the urge to attend a political rally or rugby match during work hours, or need time off for any other reason apart from genuine illness, rather be open with your employer and request a day or two of holiday leave.
PERSONAL FINANCE