The Labour Court has set aside an arbitration award ordering the South African Revenue Services (Sars) to reinstate a dishonest employee who called in sick to attend a protest action.

The facts in South African Revenue Services (Sars) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR 2243/21) [2023] ZALCJHB 222 (21 July 2023) are as follows:

On 7 September 2020, Mr Benneth Mathebula, a junior investigator, sent a text message to his supervisor, Mr Pule Mantsho, stating that he was unwell and would submit a sick leave application once the network issue was resolved. Mantsho acknowledged Mathebula’s condition and granted him permission to be absent from work. On the following day, 8 September 2020, Mathebula informed his supervisor that he was still not feeling well. Concerned about the situation, Mantsho advised Mathebula to seek medical attention if he hadn’t done so already. In response, Mathebula stated that if his condition did not improve, he would consider seeing a medical doctor.

Mathebula then allegedly sought the services of Dr Hlayiseka Chewane on 9 September 2020. Chewane issued a medical certificate stating that he had examined Mathebula on that day and found him unfit for duty from 9 to 11 September 2020, with the expectation that he would be fit to resume his duties on 12 September 2020. The nature of the illness recorded on the medical certificate was not immediately clear, but with a second pair of reading glasses and a concerted squinting of the eyes, it became apparent that Mathebula presented with a specific illness:

NATURE OF ILLNESS

“Absence due to medical condition”

While Mantsho was watching the news on television, he noticed Mathebula taking part in a protest march organised by the Economic Freedom Fighters (EFF) against Clicks (Pty) Ltd. To address this discovery, Mantsho collected footage from YouTube to discuss it with Mathebula.

As of 14/15 September 2020, Mantsho addressed Mathebula in writing and expressed his observation that he saw him on the news. Mathebula responded as follows:

“Hi Pule

Before I respond to your options, which I will; may I ask how did this come to your attention and by who (complainant) so that we are on the same page.”

Pule’s answer:

“Hi Benneth

It came to my attention when I saw you on the 19:00 news, while I was expecting you to be off due to illness.”

Ultimately, Mathebula responded as follows:

“Please note that as I notified you that I was not feeling well on 7 September 2020, later on that day I became bit better after taking some medication. A friend came to check on me and I asked if I could accompany him to Sandton. I did not see anything wrong with that, actually I thought maybe it is good to go out stretch a bit, as I was not bedridden and I felt probably after that I would be fine.

So it is true that you might have seen me, unfortunately the following day I got worse and I did let you know.

If there is any wrongdoing I might have committed, I am willing to take full responsibility for my actions.

The only reason I asked for details was that you did not ask me on the same day and that made me feel uncomfortable.

Thank you.”

On 24 March 2021, Mathebula was found guilty and dismissed for:

“Dishonesty

In that on or about 7 September 2020 you were dishonest to your manager Pule Mantso, and again you deliberately and intentionally misled him to believe that you were off sick when you called him at about 17h00 indicating that you were not feeling well on the day and that you bought medication from the pharmacy and fell fast asleep while the true reflection was that you attended and or participated on the EFF protest in Sandton.

Dishonesty

In that on or about 8 September 2020 you were dishonest to your manager Pule Mantso, and again you deliberately and intentionally misled him to believe that you were sick when you send him a message at about 6h40 indicating that you are still not feeling well and that if you continue to be ill you will consult a doctor while the true reflection was that you attended and or participated on the EFF protest again for the second day in Sandton.

Gross dishonesty

In that on or about the 7th to the 8th September 2020 you were dishonest to your manager Pule Mantso, and again you deliberately and intentionally misled him to believe that you were sick while you know that on the 7th and 8th September 2020 you will be attending and or participating on the EFF protest in Sandton.

And by so doing you broke the trust relationship between you and Sars, misused the time your employer offers to recover from the illness in a dishonest manner and thereby violated the contractual obligations of serving the employer with trust and being honest at all times.”

Mathebula referred an unfair dismissal dispute to the CCMA, and Commissioner

Faizel Mooi found his dismissal to be substantively unfair. Mooi ordered Sars to reinstate Mathebula and to pay him a certain amount for the loss of salary. Aggrieved by the award, Sars launched a review application.

In reviewing the CCMA’s finding, the Labour Court firmly asserted that Mooi had not adequately addressed the crucial question at hand. The question in focus was whether Mathebula had genuinely been unable to perform his work due to illness. A response to this pivotal inquiry exposed the deception that Mathebula had presented to Sars. Considering the undisputed evidence of his participation in the protest action, it logically followed that he was not incapacitated to the extent that he could not attend to his work.

When Mathebula informed his supervisor that he was unwell and needed to be excused from work, he was not truthful about his actual health condition. His misrepresentation of his health was a means to avoid fulfilling his contractual obligations. He was granted leave based on his alleged illness, and this allowed him to be excused from his contractual duties. However, if he had been honest with his supervisor about wanting to participate in a protest action, he would not have been granted leave. It is clear that he knew the true reason for his desired absence would not be approved, so he resorted to feigning illness.

Mathebula did not seek medical attention until two days after the protest action on 7 and 8 September 2020, which suggests that he did not face any medical challenges during that time. Unfortunately, Chewane’s certification of Mathebula’s unfitness to resume duties also came two days after the protest action. There was no clear and objective evidence to back the claim that Mathebula was genuinely unwell during the days of the protest action. A reasonable decision-maker, using the standard of proof based on the preponderance of probabilities, would likely conclude that Mathebula’s absence on those days was to participate in the protest action, rather than being due to illness.

Mooi made an impermissible speculative assumption that Mathebula’s alleged illness likely started on 7 September 2020. This conclusion lacks a solid basis since Chewane, who examined Mathebula on 9 September 2020, did not indicate that the medical condition he diagnosed had presented itself before the examination date. Making decisions based on speculation is not considered reasonable or acceptable. The use of speculation in reaching a decision renders the decision unreliable and not in line with what a reasonable decision-maker would conclude, and amounts to a significant irregularity.

The evidence strongly suggested that Mathebula was not actually sick, but was feigning illness to be available for the protest action. The fact that he was able to clap hands and sing during the protest indicated that he was physically capable of performing his duties.

Mathebula’s initial reaction when confronted by his manager was not that of an honest employee. He seemed more concerned about finding out who had lodged the complaint against him, which raised suspicions about his intentions. His later attempts to explain his initial reaction were weak and only served to reinforce doubts about his honesty.

Had the manager not seen Mathebula on television, Sars might have accepted his claim of being too indisposed to fulfil his contractual duties. Mathebula’s initial reaction when confronted suggests that he probably wouldn’t have admitted that he was fit enough to participate in the protest while allegedly being ill for those two days.

All these circumstances combined provide sufficient evidence to question the credibility of Mathebula’s claim of illness, and suggest that he indeed intended to deceive Sars to attend the protest action instead of reporting to work.

The arbitration award was reviewed and set aside, and replaced with an order that the dismissal of Mr Benneth Mathebula was substantively fair.

This article does not constitute legal advice and is based on the author’s interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

Written by Nicolene Erasmus, Director at Labour Guide