Sars employee fired after calling in sick then spotted on TV protesting

The Labour Court in Johannesburg on Thursday, 20 July, overturned a CCMA decision not to dismiss a South African Revenue Service (Sars) employee, who took time off work claiming he was sick so he could take part in a protest.

Sars took the matter to court on 14 September 2021, after CCMA Commissioner Faizel Mooi found that the dismissal of Benneth Mathebula was substantively unfair.

The CCMA at the time also ruled that Sars reinstate him and pay him a certain amount for loss of salary.

Caught on TV

Mathebula, who was employed as a junior investigator by Sars, messaged his supervisor to inform him that he was not feeling well.

The court heard that on the following day, Mathebula said that he was still not feeling well and while watching the news on television, his supervisor spotted Mathebula participating in a protest by the Economic Freedom Fighters (EFF) against Clicks on the two days that he had called in sick (7 and 8 September).

According to the judgment, Mathebula allegedly consulted a doctor and obtained a medical certificate certifying that he was unfit to work from 9 to 11 September 2021.

He was found guilty on charges of dishonest and gross dishonesty, and dismissed.

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Dishonesty

Judge Graham Moshoana during his ruling said Mathebula was dishonest to his supervisor.

“It is common cause that Mathebula participated in a protest action on a day in which he unashamedly and audaciously indicated to Sars that he was not feeling well. It is apparent that although he was not feeling well to attend to his contractual duties, he felt well to participate in a protest action.

“That being the case, when he represented to his supervisor that he was not feeling well so that he must be excused from work, he was not being truthful about the state of his health; and that the employee took advantage of the provisions in the policy of Sars to the effect that for illness lasting two days or less, the employer will accept the representations of the employee as to their fitness to attend duty without the need for a medical certificate,” Judge Moshoana said.

Not sick

Judge Moshoana added the probabilities were overwhelming that Mathebula was not sick and in fact, he was pretending in order to avail himself for the protest action.

“If he was able to clap hands and sing, it must follow that he would have been able to perform his contractual duties,” he said.

Ruling

Judge Moshoana said the arbitration award of CCMA Commissioner Mooi does not pass the “constitutional muster”.

“Accordingly, the arbitration award falls to be reviewed and set aside, and be replaced with a decision that complies with the constitutional standard order.

“In the results, I make the following order: The arbitration award issued by Commissioner Faizel Mooi under case number GAJB4164-21 dated 14 September 2021, is hereby reviewed and set aside. It is replaced with an order that the dismissal of Mr Benneth Mathebula was substantively fair. There is no costs order,” Judge Moshoana said.

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