When "Sick" Is Not "Sick" Enough For Sick Leave | Legal Articles


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When "Sick" Is Not "Sick" Enough For Sick Leave

The relationship between an employer and an employee is one based on trust, and where trust is broken it will most likely be untenable for the relationship to continue. This is the reason why when an employee commits misconduct of some sort, he/she may be given a verbal or written warning depending on the severity, whilst for other misconduct a sanction of dismissal is meted without a warning first. Usually, a dismissal on the first instance of committing a misconduct (without a previous warning), is where trust has been broken irretrievably between the parties.

In the case of Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49 (10 December 2021), the Labour Appeal Court (LAC) was faced with a determination on whether trust had been broken between an employer and an employee.

The employee had informed his manager that he is too ill to come to work that day, which workplace was a distance of 20 mins away. However, later that day he travelled to go and watch a rugby match at a venue which was an hour away. When he returned to work the next day, he was asked where he had been the previous day, after which he admitted that he had been at a rugby match but that he had went there after recovering from his illness.

The employee was charged with misconduct for breaching company policies and procedures on lawful sick leave. He was then dismissed.

The employee referred the matter to the CCMA where it was held that the dismissal was unfair as he had not been charged with dishonesty, and therefore the trust between the employer and employee had not been broken. The employer appealed to the Labour Court (LC) which held that the dismissal was unfair because the employer had failed to prove that the employee acted in dishonesty, and that there was no company policy to direct that when an employee recovers from illness on the same day, he/she must return to work. However, the LC disagreed with the findings of the CCMA on the issue of procedural unfairness.

The employer appealed to the Labour Appeal Court (LAC), which overturned the decision of the LC and held that the employee had acted in a way that was not exemplary to other employees whom he exercised authority over. Further, he had been charged with gross misconduct and by his own admission it had been dishonest of him to be paid for sick leave during the time he attended a rugby match. The LAC held that while the employee had not specifically been charged for dishonesty, he had “manifestly, 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 fully well that he would be paid for the day”. The LAC therefore upheld that dismissal was the only sanction that is appropriate under the circumstances.

The decision of the LAC above shuts the door on a lenient approach to dishonesty in the workplace and favours an interpretation where acting in any form of dishonesty feeds into a determination of what constitutes the breakdown of trust between the parties in an employment relationship.

Van Deventer and Van Deventer Incorporated assists with labour law, civil and general litigation, criminal litigation, human rights law, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in personal injury, company law and deceased estates amidst an array of others.

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