When is an employee 'dishonest'?

Is attending a sporting event when telling your employer that you are too sick to come to work, dishonest? Bizarrely, the CCMA said no - and the Labour Court agreed - seemingly because the employee did not deny this when confronted by the employer. The employee, who was in a supervisory position, advised one of the managers that he was ill and that he would not be attending work on that day. However, he and his father then travelled for at least an hour to attend a rugby match. When he returned to work he confirmed to a manager that, although not well, he had attended the match. He was found guilty of gross misconduct (not following company policy and procedures) and dismissed. At the CCMA the dismissal was found to be substantively and procedurally unfair and reinstatement was ordered. The Labour Court found that the although CCMA commissioner had erred in finding the dismissal procedurally unfair, that the dismissal was substantively unfair. There was a debate at the CCMA and the Labour Court around the wording of the charges against the employee, which did not specifically say 'dishonesty', as well as the fact that the employee did not deny that he went to the rugby match when asked about it. Also, the lack of a policy that the employee was obliged to come to work if he felt better. Hence, the conclusion was that the trust relationship had not broken down and the employee should not have been dismissed. However, the Labour Appeal Court had a different view and was quite vocal about the need to look at what actually happened and not be too concerned about semantics and technical points in matters of this nature: "Manifestly, the [employee] 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 [CCMA] 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 on the basis of 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. " "..... The [employee] 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 dismissal was held to be fair. The employer fortunately had deep enough pockets to take this all the way to the Labour Appeal Court, instead of having to live with a patently wrong decision and a resinstated employee.

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49

© Judith Griessel