Too sick for work but not a rugby match Quarter 1 2022

By PHUMZILE ZIQUBU, Published in Employment Law

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC.

Background

Mr Alexander works as an end of day controller for Woolworths in Humansdorp. On 9 June 2018, he informed one of his managers that he was sick and would not attend work. On the same day, Alexander and his father travelled for an hour from Jeffrey's Bay to Port Elizabeth to watch a rugby match. It is crucial to highlight that it takes him twenty minutes to get to work, but he didn't go as he was "too ill". He returned to work the following day and admitted to attending a rugby match after being questioned by his manager. His justification was that he was feeling better at the time he attended the match. It is also important to note that Alexander had previously been unreliable. Investigations were carried out and Alexander was subjected to a Disciplinary Hearing.

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Disciplinary hearing

Alexander was charged with gross misconduct for breach of company policies and procedures when he abused authorised leave in the form of sick leave. He was found guilty of the charge and dismissed.

He was aggrieved and referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

CCMA

At the arbitration, the Commissioner listened to the testimony of both the employee and employer. In considering the evidence, the Commissioner stated that the employee did not seek to hide that he attended a rugby match. Furthermore, he was not charged for dishonesty, and thus the employment relationship had not yet broken down. The commissioner issued an award that the dismissal was procedurally and substantively unfair, and the employer was to reinstate the employee retrospectively.

Woolworths was unhappy with the award and applied to review the matter in the Labour Court (LC).

Labour Court

On review, the judge took into account what had transpired at arbitration, namely that there was no policy submitted relating to what must be done by an employee who is on sick leave when his/her condition improves. Moreover, the court stated that there was no dishonesty on the part of the employee.

The judge concluded that the dismissal was substantively unfair, and the award could not be set aside because the employer had not proved that the commissioner's decision was unreasonable.

Against this finding, the employer approached the Labour Appeal Court (LAC) to appeal this order.

Labour Appeal Court

The LAC took into account that the employee had confirmed in his own version that his action was dishonest. This court frowned upon the lenient approach to dishonesty taken by the LC and stated that it cannot be acceptable. The employee was in a management position, yet acted dishonestly. His act of stating that he was sick, yet going to watch a rugby match, damaged the trust relationship between him and his employer.

In the position he held, it was expected that he demonstrate seniority and act with integrity by complying with all the codes and policies of the employer.

This court concluded, "it is clear that the relationship of trust as a result of his initial unreliability and now dishonest conduct had broken down. Viewed from the record of this employee, dismissal was clearly the appropriate sanction."

Comment

The LAC decision shows us that the trust relationship between an employee and employer is very important. It is a well-known principle that employees are expected to be honest at all times. Dishonesty is a serious misconduct that can break the trust relationship. Where dishonesty is an element of the transgression, courts cannot be seen to be taking a lenient approach, especially in such a case, where the employee nearly got away with claiming wages to which he did not have a right, because he attended a rugby match while on sick leave. Additionally, he had a previous record of being unreliable.

This case illustrates that dishonesty can lead to a breach in trust so as to render the continued employment unfeasible.

Ziqubu is a Legal Adviser. She writes in her personal capacity.