Abusing Sick Leave – When it becomes a Disciplinary Offence

“Keeping out of trouble is better than getting out of it.” – Muhammed Haider

Introduction

We understand what it is like, some mornings you just cannot drag yourself out of bed to go to work, despite this dreadful feeling, the majority of us “get up, get dressed and show up,” fulfilling our end of the employer-employee contractual relationship; i.e. rendering a service to your employer in return for remuneration; however, some employees take it a step further and habitually call in claiming to be sick, and taking a free day, at the expense of their employer.

Employees need to be very careful when it comes to sick leave. How often is too often, and what amounts to abusing of your sick leave?

Sick Leave

Clause 5.2 of the MIBCO main collective agreement provides:

(1) “Sick leave cycle” means the period of 36 months’ employment with the same employer immediately following –

(a) An employee’s commencement of employment; or

(b) The completion of that employee’s prior sick leave cycle.

(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee works normally work during a period of six weeks, i.e. 30 working days if he normally works a five-day week or 36 working days if he normally works a six-day week.

(3) Despite sub-clause (2), during the first six months of employment, an employee is entitled to one day’s sick leave for every 26 days worked.

Now, some employees take that as a challenge, or a right to use, or consider this to mean 10 days per year; however, I can assure you, it does not.

Sub-clause (7) continues to provide when a sick note must be presented, and states:

(a) A person who is required by his employer to produce a medical certificate if he has been absent for more than one day or more than two occasions during an week period, shall produce such a medical certificate as issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with the Professional Council established by an Act of Parliament within a period of not more than two days after his return to duty or such employee shall forfeit his right to sick pay; provided that where the employee is absent from work as a result of sick leave on any days or days from Friday to Monday (inclusive) and such day/days form part of his normal working week, he shall be required to produce such a medical certificate for such day/days.

(b) Provided further that should any person be absent the day before or after a Public Holiday he shall be required to produce such a medical certificate for such day/days.

Take the time to familiarize yourself with the company policy on sick leave and make sure that you comply, lest you find yourself in unnecessary trouble.

Case Law

The Labour Appeal Court (LAC) dealt with an interesting scenario in the case of Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49, where the court had to consider the fairness of a dismissal for claiming sick leave in order to attend a rugby match.

The facts are as follows, the employee called to inform one of his managers that he was ill and could not attend work that day. However, later that same day, during working hours, he elected to attend a rugby match, an hour’s drive from his home. Interestingly, however, his workplace is twenty minutes away. This was reported to his employer and upon his return to work the following day, his manager questioned where he had been the previous day, and the employee confessed that although he was unwell, he recovered and attended a rugby match. The employee was charged for gross misconduct (breaching company policies and procedures), placed in a disciplinary hearing for abusing his sick leave and subsequently dismissed.

The employee referred an unfair dismissal dispute to the CCMA, who found the dismissal to be both procedurally and substantively unfair, ordering that the employee be reinstated with full back pay. The arbitrator relied on the fact that the employee had not concealed the truth, no progressive discipline was followed, and that he was not charged for dishonesty, therefore the employment relationship had not yet broken down.

The Labour Court (LC) agreed with the arbitrator finding that the dismissal was substantively unfair, but procedurally fair, finding further that the company failed to prove that the employee had acted dishonestly or that there was a policy in the workplace that required an employee who had been booked off sick (on a particular day), to later report for duty once his condition had improved.

The Labour Appeal Court (LAC), however, cited “This lenient approach to dishonesty cannot be countenanced;” and further held “He was palpably dishonest, even on his own version. He expected to get away with the enjoyment of attendance at a rugby match on the basis of claiming sick leave and then enjoying the benefits thereof. This is dishonest conduct of a kind which clearly negatively impairs upon a relationship of trust between an employer and employee.” As a result, the LAC found that the sanction of dismissal was appropriate in the circumstances.

Suspicion of dishonesty

In the LC case of Sishen Iron Ore Company Ltd (Sishen Mine) v Keetsemang and Others (JR 344/2018) [2020] ZALCJHB 190, the employee was dismissed for dishonesty related to the misuse of sick leave. The company alleged that that the employee was abusing his sick leave as there was a clear pattern of taking sick leave at month end, after or before off days or weekends. The employee referred an unfair dismissal dispute to the CCMA. The arbitrator acknowledged the pattern or trend of sick leave used, however found that although this raised a suspicion of dishonesty, it fails to prove dishonesty or misuse of sick leave. The employee’s dismissal was found to be substantively unfair, and was awarded partial retrospective reinstatement. On review to the Labour Court, the review application was dismissed.

The reason for discussing the second case is to point out that the Woolworths LAC judgment as discussed above is not meant to be a “one size fits all’ approach. It is trite that each case must be determined on its own merits. However, the importance of the Woolworths LAC judgment is that the courts are sending out a strong message that a holistic approach must be adopted and that a lenient approach to dishonesty will not be tolerated. Even if an employee is not specifically charged for dishonesty, the nature of the conduct complained about will be considered in totality and it will have to be determined whether that conduct has an impact on the trust relationship between employer and employee.

Conclusion

Members are encouraged to acquaint themselves with the company policy on sick leave and make sure that if they are booked off sick, they are not found attending other extended functions whilst they are not well enough to attend work.

(Article by Joshua Nattar, edited by Nichole Turner)

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