In Woolworths (Pty) Ltd v CCMA, the Labour Appeal Court upheld the fairness of a dismissal for an employee who alleged that he was ill, thereby claiming paid sick leave, but attended a rugby match on the day.
On 9 June 2018, Mr Alexander informed a manager that he had taken ill and would not be attending work on that day. On the day, he and his father travelled from Jeffreys Bay, where he resided, to Port Elizabeth to attend a rugby match.
When he returned to work for his next shift, his manager enquired as to where the third respondent had been on the previous day. He responded, that although he was not well, he had attended a rugby match.
Mr Alexander was charged with ‘Gross misconduct in that on 9th June 2018 you breached company policies and procedures when you abused authorised leave in the form of sick leave when you informed your manager that you were unable to report for your scheduled shift but was observed at an extended function in Port Elizabeth. This could have resulted in your claiming wages to which you were not entitled to in the form of sick leave if this was not picked up.’ He was found guilty of the charge and dismissed.
The CCMA found Mr Alexander’s dismissal to have been substantively and procedurally unfair and awarded him retrospective reinstatement. The Commissioner’s reasoning was that Mr Alexander did not hide the fact that he had attended a rugby match, Woolworths had not charged him for dishonesty and thus the employment relationship had not yet broken down.
On review, the Labour Court confirmed the dismissal to be substantively unfair as Woolworths had not established that Mr Alexander had been dishonest and there was no policy in place that required an employee who had been booked off sick to report for duty when his condition had improved.
The Labour Appeal Court (“LAC”) found that Mr Alexander’s actions were manifestly dishonest. On the issue of sanction, the LAC issued Mr Alexander a proverbial red card by finding that “This lenient approach to dishonesty cannot be countenanced. [Mr Alexander] held a relatively senior position…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.” The LAC found that Mr Alexander’s dismissal was substantively fair and that dismissal was an appropriate sanction.
The LAC has held that charges in disciplinary proceedings need not be drafted with the precision of those in criminal matters, and that an overly technical approach to the framing and consideration of disciplinary charges should be avoided. Instead, a CCMA Commissioner must adopt a pragmatic approach in considering the true impact of an employee’s misconduct on the trust relationship. Where the trust relationship is broken a continued employment relationship is simply untenable.
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