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Beware the consequences of malingering, whether it’s to attend a rugby match or an EFF protest

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Marthinus van Staden is Associate Professor at the Wits University School of Law, where he teaches Jurisprudence and Labour Law. He obtained his doctorate in Labour Law from the University of Pretoria in 2018.

Recent cases of employees misusing sick leave to attend activities outside of the workplace — including a Sars employee who was spotted at an EFF protest against Clicks — have sparked a debate on the consequences of this behaviour.

While it may seem like a convenient way to get some time off, the repercussions of dishonesty in claiming sick leave can be far-reaching. There are significant policy reasons why employees should not misuse sick leave and how this practice impacts both employers and the economy.

In the case of Woolworths v CCMA, the employee reported to his employer that he was sick and that he could not come in to work. However, the employee and his father on that day drove for more than an hour to attend a rugby game. The employee had previously been issued with warnings for misuse of sick leave and for disregarding working hours, although these warnings had lapsed.

There was little dispute about the dishonesty of the employee’s action and he confirmed that his action was dishonest. The employee also accepted that his behaviour could hardly be regarded as setting a good example for his subordinates.

The charge brought against the employee was based on gross misconduct in that he had breached company policies and procedures when he abused authorised leave in the form of sick leave. The employee was dismissed and referred the matter to the CCMA who concluded that the dismissal was unfair.

The CCMA held that there was no evidence of dishonesty as the employee had not sought to hide the fact that he had attended a rugby match. The Labour Court found that the decision of the CCMA was reasonable; that there was no evidence of dishonesty; and that the employer had no policy stating what an employee could and could not do when an employee was duly booked off from work. The employer appealed to the Labour Appeal Court.

The Labour Appeal Court held that the employee 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 full well that he would be paid for the day. The finding of the CCMA that there had been no act of dishonesty is subject to review.

This lenient approach to dishonesty taken by the CCMA and sanctioned by the Labour Court cannot be justified. The employee held a relatively senior position. He was found to be obviously dishonest and he expected to get away with attending a rugby match based on claiming sick leave and then reaping the benefits. This is clearly dishonest behaviour that jeopardises the trust relationship between an employer and an employee.

The employee had been disciplined on previous occasions for being absent as well as for coming late. The relationship of trust because of his initial unreliability and now dishonest conduct had broken down. Therefore, the court held that dismissal was clearly the appropriate sanction.

Taxing decisions 

In the recent case of Sars v Mathebula, the employee claimed sick leave for two days. His supervisor accepted the sick leave based on a text message from the employee stating that he was not feeling well and would apply for leave once the network was functioning properly.

However, the supervisor later spotted the employee actively participating in a protest march organised by the Economic Freedom Fighters (EFF) against Clicks on the very days he had claimed to be sick.

When confronted in writing, the employee acknowledged that he had indeed been seen at the protest march but still maintained that he was unwell and seeking medical attention. He claimed that he had started feeling better after taking medication and thought it was okay to accompany a friend to Sandton, and he only got worse the next day.

The employee was served with a disciplinary notice and was subsequently found guilty of dishonesty for intentionally misleading his manager about being ill while participating in the protest, thus violating the trust and contractual obligations with the employer.

The employee referred the matter to the CCMA, claiming unfair dismissal. The CCMA ruled in favour of the employee, stating that his dismissal was substantively unfair. Unfortunately, the reported judgment does not state the reasons for the CCMA’s findings. The employer was dissatisfied with the CCMA’s decision and filed a review application in the Labour Court.

The Labour Court found that the employee’s participated in a protest while claiming to be unwell, indicating a lack of sincerity in his illness claim. The CCMA did not address the crucial question of whether the employee was genuinely too indisposed to work. The employee faked his illness to be excused from work and attend the protest as he knew his supervisor would not approve his absence for the protest.

Read more in Daily Maverick: When the ‘revolution’ gets televised — SARS employee seen at EFF protest after calling in sick fired

The medical certificate submitted by the employee lacks supporting evidence and fails to objectively prove his illness on the days of the protest. The court reiterated the finding of the Woolworths case that dishonesty in claiming sick leave cannot be tolerated as it undermines the employer-employee trust relationship.

The employee’s actions of participating in the protest while claiming illness indicates a lack of genuineness and he intended to deceive the employer to excuse himself from work. The employee’s initial reaction to being confronted and his subsequent explanation are deemed unconvincing and further evidence of dishonesty.

The burden of proof lies with the employee claiming illness and the employee failed to substantiate his illness claim. The employee’s dismissal was therefore held to be substantively fair.

These decisions reaffirm three important principles of dismissal law.

First, employees are expected, as part of their employment contract, to behave honestly and in the interests of their employers.

Second, although it is generally true that disciplinary penalties in the workplace must be applied progressively, dismissal is generally justified in all cases of serious dishonesty. Offences involving dishonesty are generally destructive to an employment relationship.

Third, senior employees can be held to higher standards than others. Acts by senior employees will therefore ostensibly lead to dismissal while dishonesty by lower-ranking officials, where honesty is not necessarily a crucial component of the job, may not. The key question to be asked is if the position the employee occupied was one where trust was a key factor.

Judgment consistency and fairness

Nevertheless, the decision of the Labour Court in the Sars matter is questionable. This is so as the Sars case is distinguishable from the Woolworths matter in three distinct ways.

First, in the Woolworths case, the employee had already received a previous written warning for a similar offence related to dishonesty. Our courts have adopted a system of progressive discipline in terms of which dismissal should be regarded as the last option and where employers should first attempt to correct the behaviour of the employee through lesser sanctions. In the Sars matter, no information about the disciplinary record of the employee was given.

Second, in the Woolworths case, the employee held a senior position. In the Sars matter, the employee was relatively junior. Courts would be more likely to infer that the relationship of trust has broken down when a senior employee commits misconduct.

And third, in the Woolworths case, the employee admitted to actively attempting to deceive the employer and that he was never sick. In the Sars case, the employee argued that he was sick but that he felt better during the course of the day and therefore decided to join the protest.

This point raises questions about what employees can and cannot do whilst they are off on sick leave. Would a trip to the shops to buy groceries similarly be met with harsh consequences?

In conclusion, the misuse of sick leave is a serious issue that deserves attention from both employees and employers. Faking illness to get out of work not only undermines the trust between employers and their workforce but also imposes substantial costs on businesses and the economy at large.

As we navigate the complexities of work-life balance, let us remember that integrity and honesty should guide our actions. By respecting the true purpose of sick leave, employees can protect their jobs and foster a healthier workplace culture for everyone involved. DM

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Comments - Please in order to comment.

  • Robert Pegg says:

    The abuse of sick leave is common practice. Employees see sick leave as part of their entitlement to paid leave. A contract of employment needs to clearly define when sick leave is acceptable to avoid this situation.

  • Dennis Bailey says:

    Surprisingly useful, thanks. I wonder how prevalent malingering is. In my own experience malingerers tend to be poor performers anyway so is this a convenient gate to get rid of dross in the workplace.

  • bkeegn says:

    Dishonesty remains dishonesty at any level whether in the workplace or elsewhere. Please don’t make a case for it being somehow acceptable are some levels.

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