Employment law update – An employee is handed a red card for his actions

March 1st, 2022

Woolworths (Pty) Ltd v CCMA and Others (LAC) (unreported case no PA12/2012, 10-12-2021) (Davis JA with Waglay JP and Savage AJA concurring).

On the morning of 9 June 2018, the employee called his manager informing him that he had taken ill and would not be attending work that day. However, later the very same day, the employee travelled an hour to watch a rugby match.

At the start of the employee’s next shift and in response as to why he was not a work the previous shift, the employee said he had taken ill but had nevertheless attended a rugby match on the same day.

The employee was charged and dismissed for gross misconduct in that he abused the employer’s sick leave policy, which conduct if left undetected, could have resulted in the employee claiming his wages when he was not entitled to sick leave.

At the Commission for Conciliation, Mediation and Arbitration (CCMA), the arbitrator found the employee’s dismissal both procedurally and substantively unfair. The arbitrator’s reasoning in this regard was underpinned by the view that the employee was forthright about attending the rugby match and furthermore, the employer did not charge the employee with any act of dishonesty. Pursuant to his findings, the arbitrator awarded the employee retrospective reinstatement.

The employer’s attempt to set aside the award on review failed. The Labour Court found that the arbitrator correctly considered whether the employee’s actions were dishonest and based on the employer’s lack of evidence to establish any dishonesty; the arbitrator’s finding in this regard was not unreasonable. Furthermore, the employer did not have a policy, which dictated what an employee ought not do when booked off sick – the view of the manager – which was that the employee ought to have returned to work once he was feeling better, was a personal view not found in any policy.

On petition to the Labour Appeal Court (LAC), the employer turned to the appeal court. Having considered an extract of the record, the LAC found that there was little doubt that the employee had acted dishonestly. When he was asked whether it was ‘honest’ that his employer pay him for the day, including the time he spent attending the rugby match, the employee’s reply was ‘no, I don’t think so’.

The LAC held:

‘Manifestly, the third respondent 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 second respondent that there had been no act of dishonesty is obviously subject to review, even if the standard for review were so onerous that an award could only be set aside based on an egregious error.

This is exactly the appropriate term to describe the approach adopted by the second respondent and regrettably it was repeated by the court a quo.’

Addressing the question of whether the sanction of dismissal was appropriate, the LAC found that the employee’s act of dishonesty impaired the trust relation between the parties, to the extent that dismissal was justified.

The appeal was upheld, and the arbitration award was replaced with a finding that the employee’s dismissal was procedurally and substantively fair.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2022 (March) DR 33.

De Rebus