Kruger Incorporated | Attorneys Notaries Conveyancers
What is the most important duty owed to an employer by an employee? The duty to show up and render your services during your working hours (in plain and simple language). However, there exist exceptional
circumstances where an employee is relieved from this duty, i.e. when he or she can show that they are unable to render their services. Examples of such exceptional circumstances include sickness or ill health and family
responsibilities. The onus to prove this inability rests on the employee, as they are paid in full for their absence
from work. It is only fair that the employee proves to the employer that the absence is, indeed, justified.
1. Misconduct or incapacity?
It is important to note the difference between when an employee’s actions constitute “misconduct” and when it constitutes “incapacity”. Misconduct is when an employee is capable of complying with a workplace policy or standard but fails to do so without any valid reason. Here, the employee acts mala fide intentionally – they are able, but not willing. Incapacity refers to when an employee is unable or incapable to perform certain tasks in the workplace which are on par with the employer’s standards/policies. The employee simply does not possess the ability to perform his or her tasks due to reasons beyond his or her control. It is, therefore, not intentional.
When an employee’s actions constitute misconduct, disciplinary action is justified (given that a fair
procedure must be followed). In the case of incapacity where the employee does not possess the
necessary skill, for instance, there rests a responsibility on the employer to provide guidance and
assistance to the employee, as well as hold frequent performance reviews to give the employee a fair
chance to better themself and to perform to the satisfaction of the employer. When an employee is
incapacitated due to sickness or ill health, and the incapacity is permanent, the employee’s contract may
be ended (also known as medically boarded). Dismissal due to incapacity is known as “no fault” dismissals
as it relates to the capacity and not the conduct of the employee – AECI Explosives Ltd (Zomerveld) v
Mambalu [1995] 9 BLLR 1 (LAC).
2. Woolworths (Pty) Ltd v CCMA & Others [2021] ZALAC 49
2.1 CCMA
In this case, one of the Appellant’s employees advised one of his managers that he was feeling ill and
would be unable to attend work that day. Upon the employee’s return to work the following day and
questioning of his whereabouts the previous day, he disclosed that, although he was not feeling well the day before, he attended a rugby match. The employee and his father travelled about an hour to attend
the rugby match, whereas the employee’s trip from his place of residence to work is about twenty
minutes.
The employer decided to formally charge the employee with “gross misconduct” in that he breached company procedures and policies by abusing sick leave (authorised). Following the disciplinary hearing,
the employee was found guilty of the aforementioned charge and dismissed.
The employee then referred a dispute of unfair dismissal to the Commission for Conciliation, Mediation,
and Arbitration (CCMA) where the Commissioner found the dismissal to be both substantively and
procedurally unfair, and ordered that the employee be reinstated retrospectively. The main reasons for the Commissioner’s award were the following:
2.2 Courta quo (Labour Court)
Although the learned Judge found that Commissioner Frederick Sauls was mistaken when he found that the employee’s dismissal was procedurally unfair, he was unable to set aside the finding that the dismissal was substantively unfair because the employer failed to prove that the Commissioner’s finding was unreasonable. The Commissioner’s finding was upheld, which led the employer to apply for leave to
appeal to the Award and Order.
2.3. Appeal Court (Labour Appeal Court)
It is of great importance to note that, on the employee’s own version, he accepted that he acted
dishonestly and there was little to no doubt that his actions were indeed dishonest behaviour. In addition
to the aforementioned, the employee also agreed that his actions were not exemplary to the employees
working under his supervision. The heart of the employee’s dishonesty lies in the fact that he was not well enough to render services to
his employer, but well enough to travel farther than his workplace to attend a rugby match, all whilst
receiving pay for a full day’s work. Sick leave is graciously granted to employees in terms of our country’s
labour laws, on a paid basis. Life does happen and there are certain laws in place to protect employees
from employers who might be unsympathetic and unreasonable.
3. How much weight does the fact that the employee had no valid warning against his name carry?
In the matter of Singh v Chemical Specialties (2009)3 BALR 213 NBCCI, the commissioner found that
employers were not confined to acting against employees who have flouted rules laid down in disciplinary
codes. Employees may also be disciplined when they conduct themselves in a manner they know or
should know is wrong. The commissioner held that the gravity of the misconduct and the impact it had on
the employment relationship had to be weighed against the fact that the employee was a first offender. In
this instance, the employee did, in fact, breach company procedures and policies and, given his seniority,
one is to expect better behaviour from someone who has subordinates. His actions caused great harm to
the employer-employee trust relationship.
That begs the question: Was a dismissal a fair sanction in this instance? The Labour Appeal Court found
that the employee was “palpably dishonest” and took into consideration that his position within the
company was quite senior. Most importantly, it was found that the trust relationship had totally broken
down, which, quite frankly, makes a future working relationship impossible.
The appeal was upheld and a new order was made that the employee’s dismissal was procedurally and
substantively fair.
4. Conclusion
A contract of employment is regarded as a contract uberrimae fidei – of the utmost faith. Employees are
duty-bound to act bona fide and in the best interest of their employer – a duty which the employee, by his
misconduct, ignored. It followed, naturally, that the employee’s behaviour resulted in the employer not
being able to trust himto fulfil his duties and responsibilities anymore.