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The Basic Conditions of Employment Act 75 of 1997 (“BCEA”) provides that every employee is entitled to sick leave. Further, where an employee is absent from work for more than two consecutive days, the employee is required to produce a medical certificate confirming that he or she is unable to work due to sickness or injury.

However, the South African labour courts and the Commission for Conciliation, Mediation, and Arbitration (“CCMA”) have seen several instances of employees abusing their sick leave entitlement more recently. The case of South African Revenue Services (SARS) v CCMA and Others, which concerned the review of an arbitration award, cements the judiciary’s intolerance towards the dishonest misuse of sick leave.

South African Revenue Services (SARS) v CCMA and Others

The facts

The facts before the commissioner during the arbitration were as follows: Mr Benneth Mathebula (Mathebula) was employed as a junior investigator at SARS. On 7 September 2020, he informed his supervisor, Mr Mantsho (Mantsho), that he was not feeling well and would not be able to come into work. He said he would submit a leave application once the network was up and running. The following day, on 8 September 2020, Mathebula again informed his supervisor that he was still feeling ill and would be seeing a doctor if his condition did not improve.

On 9 September, Mathebula consulted a doctor, one Hlayiseka Chewane, who issued a medical certificate stating that Mathebula was unfit for work for the period of 9 to 11 September 2020 as he presented with a “medical condition.”

However, Mathebula’s supervisor, Mantsho, saw his employee, who had been too ill to perform his work duties, attending a protest march on the news on the days of 7 and 8 September 2020. Mathebula was confronted by his supervisor and admitted to attending the protest march. In a message to his supervisor, he explained that he felt a bit better later on the day of 7 September and accompanied a friend to Sandton, whereafter he started feeling ill again the following day.

Mathebula was served with a disciplinary notice for his grossly dishonest conduct in deliberately misleading his supervisor to believe he was sick while he attended a protest. He was ultimately found guilty of the charges against him and dismissed.

Mathebula approached the CCMA and argued that his dismissal was substantively unfair. The commissioner agreed, held that it was, and ordered SARS to reinstate Mathebula. SARS then took that decision on review to the labour court.

The Labour Court decision

The labour court in the case of South African Revenue Services (SARS) v CCMA and Others was tasked with determining whether the dismissal of Mathebula was indeed substantively unfair, meaning that SARS dismissed Mathebula for a fair reason. SARS argued that the commissioner did not consider the evidence before him as he came to a conclusion that no reasonable decision-maker could have reached.

The labour court held that the question the commissioner was required to consider was this: was Mathebula so indisposed that he could not attend to his work? In light of the uncontested evidence presented to the commissioner regarding Mathebula’s participation in the protest action, it must be the case that he was not.

The labour court also held that it follows that if Mathebula was not so indisposed that he could not perform his work duties, he was dishonest in representing to his supervisor that he was. Further, it was clear to the labour court that had Mathebula requested to be excused from work in order to attend the protest, his supervisor would not have excused him.

Mathebula contested this and argued that he was ill, relying on the medical certificate he submitted as evidence thereof. However, the medical certificate was sought two days after the dates on which the protest took place, being 7 and 8 September. Since the medical certificate declared Mathebula unfit for work on the days of 9 to 11 September, there is no objective evidence that Mathebula was actually ill on the days on which he attended the protest.

Further, the labour court referred to other cases wherein it was held that medical certificates are not incontestable evidence of illness but rather constitute prima facie proof that the employee was indeed incapacitated. This means that an employee who wants to rely on a medical certificate as proof of his incapacity needs to call the medical practitioner who issued the certificate to provide evidence in this regard. The onus is on the employee to call the medical practitioner as a witness and provide proof of his illness or incapacity.

It was found that Mathebula had thus abused the trust extended to him by his employer by taking advantage of SARS’ sick leave policy. The labour court thus held that the decision reached by the commissioner was not one a reasonable decision-maker would reach, that the decision amounts to a gross irregularity, and that it should be set aside. The dismissal of Mathebula was ultimately held to be substantively fair.

Nothing new

This decision is the latest in a string of judgments and arbitration awards, all confirming the labour court’s intolerance of the abuse of the relationship of trust intrinsic to all employment relationships.

In the case of Woolworths v CCMA and Others, an employee represented to his employer that he was ill and would not be able to work, and instead travelled an hour to watch a rugby match. The employee was dismissed, and both the CCMA and the labour court found that the dismissal was procedurally and substantively unfair, as the employer did not prove that the employee’s actions were dishonest and as the employer did not have a policy dictating what an employee could or could not do when on sick leave. The labour appeal court took a stern approach to the dishonesty displayed by the employee and held that such behaviour clearly negatively impairs a relationship of trust between an employer and an employee.


Although some commissioners at arbitration may make findings that are different to the general principles set out above, it remains clear that South African labour courts do not tolerate the misuse of sick leave for personal matters, and any employee looking to score a day off on their boss’ dime should think very carefully before they do.