Woolworth (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others(PA12/2020) [2021] ZALAC 49 (10 December 2021) had tongues wagging as it sidestepped through the courts.
The employee, Mr. Alexander informed his manager that he was too ill to work. He then travelled from Jeffreys Bay to Port Elizabeth, a one hour trip, to enjoy an erstwhile game of rugger. He attended at work the next day and when asked where he had been he admitted to going to watch the rugby. He told his manager that after the call he started feeling better and was therefore able to make the trip
Pursuant to a hearing he was dismissed for breaching policies and abusing sick leave.
At the CCMA the arbitrator declared the dismissal procedurally and substantively unfair, predominantly reasoning that he had not been charged with dishonesty and the employee had admitted right off the bat that he went to watch the game.
At the Labour Court things did not go much better for the company.
The Court found the procedure to be fair but considered that the company had failed to prove that Alexander acted dishonestly or that there was a policy in place that an employee, who had been booked off sick, must report for duty when his condition had improved.
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The company then approached the Labour Appeal Court. The LAC viewed the matter through the prism of the charge, misconduct and abuse of sick leave. The charge of dishonesty itself was not required and spoke rather to the employment relationship in terms of sanction.
The LAC held that the employee was palpably dishonest, even on his own version. He had manifestly acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties, attending a rugby match and claiming sick leave. The prior findings of no dishonesty were seriously misplaced.
The employee had prior transgressions for being absent and arriving late. Despite the expiry of those warnings, they did, along with the dishonest conduct demonstrated the trust relationship had broken down.
The employee had been disciplined on previous occasions for being absent and for arriving late for work, although most of the warnings had expired. As a result of the employee’s initial unreliability and now dishonest conduct, the LAC held that the relationship of trust had clearly broken down.