South African employers can fire their staff members for faking sick leave.

In Hans v Montego Pet Nutrition [2024], where the Commission for Conciliation, Mediation and Arbitration (the CCMA) had to determine whether an employee’s attendance at a social occasion whilst booked off on sick leave warranted their dismissal.

Jacques van Wyk and Andre van Heerden from Werksmans Attorneys said the the employee was employed for roughly six years before they were dismissed on grounds of misconduct related to dishonesty.

The charges were based on the employee attending a rugby match where they were seen consuming alcohol.

The employer said that this conduct amounted to dishonesty in that the employee was undoubtedly not hindered from being at work.

The arbitration proceedings took place before the CCMA on 28 September 2023, and they reconvened and were finalised on 1 November 2023.

“As between the parties, it was disputed whether (1) there was a rule that governs the conduct of employees while on sick leave; (2) dismissal was the appropriate sanction; and (3) the chairperson was biased or not during the hearing,” said Van Wyk and Van Heerden said.

“The disputed facts formed the basis for the CCMA Commissioner’s determinations.”

The employer’s witnesses testified that (1) the employee knew of the employer’s sick leave policy, which states that an employee abusing the sick leave privilege will face disciplinary action.

Employee (2) also attended the initial induction session and signed attendance registers to confirm that they understood what was presented.

The employee, however, contended that the chairperson had alleged bias and adjourned proceedings without allowing them to call witnesses.

The employer stated that the chairperson only interfered to explain the rights of the parties and that the employee was not denied their right to call witnesses but rather did not exercise this right.

Considering the employee’s lean disciplinary record and benign intentions, they argued that dismissal was too harsh a sanction.

CCMA Commissioner

Although the employee said that they were not aware of the sick leave rule, the CCMA Commissioner said that the employee was employed for long enough to be aware of the rule, which was also in their employment contract.

Not only did the Commissioner find that the employee was aware of the rule, but they transgressed it.

Because the employees failed to substantiate their claims about the chairperson’s impartiality, the Commissioner found that the procedure following the employee’s dismissal was fair.

The Commissioner then looked at Woolworths (Pty) Ltd v the Commissioner for Conciliation, Mediation and Arbitration and Others, which stated that the abuse of sick leave is a justifiable reason for dismissal, as employees are required to respect a company’s policies.

The Commissioner also said that the employer had to take this measure to ensure that other employees do not follow suit.

Importance of the Case

“Employees have a common law duty to act honestly during the course of their employment so as to foster the trust relationship between themselves and their employers,” said the experts.

“Claiming to be too sick to work when one is not, is not only dishonest but also a breach of the contract of employment often warranting dismissal.”

“Employers should ensure that (1) employees are made aware of and are able to access their sick leave policies; (2) policies are updated regularly; and (3) disciplinary actions taken for sick leave abuse are fair, consistent, and in accordance with company policies and applicable laws.”

Source: | By: Luke Fraser


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