Two recent cases brought to the Labour Court and Labour Appeal Court have highlighted that the courts will ultimately uphold the dismissal of an employee who, although not ill, has claimed sick leave, because it undermines the trust relationship.

By Dumisani Ndiweni, partner, and Eugene Chaphi, candidate attorney from Webber Wentzel

In the midst of flu season, many organisations record more sick days taken by employees than usual. Given the impact that employee absenteeism has on productivity, morale and, ultimately, the bottom line, it is crucial to distinguish sick leave abuse from genuine cases of illness. Two recent cases emphasise how sick leave abuse will be dealt with.

In South African Revenue Services (SARS) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others, an employee informed his supervisor that he was not feeling well, and his supervisor excused him from work. However, his supervisor saw him on the evening news, participating in a protest on the two days when he said that he was unwell. After a disciplinary enquiry, the employee was found guilty of dishonesty and gross dishonesty for intentionally misleading his supervisor into believing that he was sick.

The employee was dismissed and, feeling aggrieved by his dismissal, referred a claim of unfair dismissal to the CCMA. While the CCMA agreed that the dismissal was unfair, the Labour Court found otherwise, stating that the employee was not truthful about the state of his health. That misrepresentation was an abuse of the employer’s policy, which did not oblige employees to submit a medical certificate if they were ill for two days or fewer. The court emphasised that the policy was based on the employer’s trust in its employees.

The court in SARS followed the approach taken in Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others.  In this case, Woolworths charged an employee with gross misconduct for breaching its policies and procedures on sick leave when he was caught attending a rugby match on the same day that he alleged he was sick.

The CCMA and later the Labour Court concurred that the dismissal of the employee was unfair. However, the Labour Appeal Court (LAC) stated that the employee’s behaviour was dishonest because he had lied about being sick, which he knew would allow him to be paid for the day, even though he had not worked.  Most importantly, the LAC ruled that dismissal was appropriate. The trust relationship was damaged because the employee was unreliable and dishonest.

Sick leave is an essential benefit that promotes well-being and productivity in the workplace. However, dishonest abuse of sick leave undermines the employer-employee relationship and is costly for businesses. Our courts have made it clear that they will not come to the aid of employees who engage in such dishonest conduct and will support employers who take appropriate action against such employees. The SARS and Woolworths cases are a reminder that when an employee abuses sick leave, such behaviour damages the trust relationship, which is a solid basis for dismissal.