‘Cough cough’ (are you really on sick leave?)

In the midst of flu season, many organisations record more sick days taken by employees than usual. Given the impact 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 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 he was unwell. After a disciplinary inquiry, the employee was found guilty of dishonesty and gross dishonesty for intentionally misleading his supervisor into believing 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 the dismissal was unfair, the Labour Court found otherwise, stating the employee was not truthful about 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 the policy was based on the employer's trust in its employees.

The court in the Sars case 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 day he alleged he was sick.

The CCMA and later the Labour Court concurred the dismissal of the employee was unfair. However, the Labour Appeal Court (LAC) stated 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 dismissal was appropriate. The trust relationship was damaged because the employee was unreliable and dishonest.

Sick leave is an essential benefit that promotes wellbeing 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 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.

*Dumisani Ndiweni is a partner and Eugene Chaphi is a candidate attorney from Webber Wentzel