An employer is sure to be very upset when an employee is booked off on sick leave, but is then seen engaging in social activities that a “sick” person should not be engaging in. Can the employer dismiss the employee?
In the matter of Hans v Montego Pet Nutrition [2024], the Commission for Conciliation, Mediation and Arbitration (CCMA) had to determine, amongst other things, whether an employee’s attendance at a social event whilst booked off on sick leave warranted his dismissal.
Disciplinary charges were brought against the employee since whilst he was booked off on paid sick leave, he attended a rugby match during which he was seen consuming alcohol. The employer regarded this conduct as dishonesty. The employee was clearly not incapacitated from being at work and the employer contended that the employee was dishonest in claiming to be sick.
Evidence was presented that the employee was aware of the employer’s sick leave policies, one of which stated that “should it be noted that or suspected that an employee is abusing sick privilege, disciplinary action will be taken”. The employee was dismissed on grounds of misconduct related to dishonesty.
The matter was referred to the CCMA and the Commissioner found that although the employee denied that he was aware of the Rule, the Rule formed part of his contract of employment and that he signed his contract of employment. The employee had been employed for long enough to be well aware of the Rule. The Commissioner accordingly found that the employee had transgressed it.
In the matter of Woolworths (Pty) Ltd v the CCMA and Others [2021] the Labour Appeal Court held that the sanction of dismissal is justified in instances of sick leave abuse (which is considered dishonest conduct) as an “employee is required to act with integrity and abide by the company policies, procedures and codes”.
Based on the above, the Commissioner found that dishonesty falls short of this standard and held that the employer had to take this measure to deter other employees from doing the same, ultimately protecting its interests.
Employees have a common law duty to act honestly during the course of their employment. If not, the trust relationship between themselves and their employers will be ruined. 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.
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