Too sick to work but not too sick for a JOL

Author: Karabo Reffo

The Labour Appeal Court has finally confirmed that the misuse of sick leave can warrant a dismissal from employment.

In the recent case of Woolworths v Alexander where an employee called in sick to work but actually travelled to a sporting event on the day, the court considered how ill the employee could have been to not report to duty whilst he was able to travel and attend a rugby match. The employee’s conduct was found to amount to gross misconduct in that he breached company policies and procedures by abusing authorised sick leave which he could have claimed wages he is not entitled to if his whereabouts remained unknown.

The misuse of sick leave is a form of dishonesty in the work place. Dishonesty affects the fundamental trust in a relationship of employment and thus this form of dishonesty was also found to be a dismissible offence. The court’s judgement comes as no surprise but as a reminder and warning to employees that along Chapter 3 of the Basic Conditions of Employment Act 75 of 1997 entitling them to the rights to paid leave, there is a corresponding responsibility to use statutory leave appropriately for prescribed purpose.

Employees are reminded of the types of statutory leave they are entitled to and the scope thereof:

• Annual leave (per Section 20 of the Basic Conditions of Employment Act): paid time off work which can be used for various purposes including rest, studying or unofficial holidays.
• Sick leave (Section 22): paid leave for the employee’s own illness and not any other reason.
• Maternity/Parental leave (Section 25; 25A and 25B): paid leave for primary caregivers.
• Family Responsibility leave (Section27): paid leave for immediate family responsibilities.

With this court judgement we can anticipate more interesting cases concerning other types of leave too. Employers are advised to adopt a strict approach to dealing with the misuse of statutory leave.