Pretoria - Calling in sick and then participating for two days in an EFF protest came at a high price for a junior investigator at South African Revenue Service (Sars).
His supervisor saw him on television, appearing healthy while singing and clapping as he marched along.
Sars fired Benneth Mathebula following a disciplinary hearing, but he turned to arbitration, where he fought his dismissal. The commissioner who heard his complaint ruled that Sars was too harsh and that he had to be reinstated.
Sars then turned to the Labour Court in Johannesburg, where it succeeded in overturning the CCMA’s decision. The Labour Court found that dismissal was warranted in this case.
Mathebula’s problems started when, on September 7, 2020, he sent a text message to his supervisor, stating that he was not feeling well and he would complete a sick leave application once the network was fine.
His supervisor subsequently excused him from attending work.
The following day, Mathebula told his supervisor he was still not feeling well. Worried about him, the supervisor told Mathebula to seek medical intervention if he had not done so as yet. Mathebula responded by indicating that if he did not get better, he would have to see a doctor.
The day after the second message, Mathebula consulted a doctor, who issued a medical certificate certifying that he examined Mathebula on that day, and according to him, Mathebula was unfit from September 9 until 11 to resume duties.
Judge Graham Moshoane commented that it appeared difficult to decipher the nature of illness recorded on the medical certificate, but “with the second pair of reading glasses and a concerted squinting of eyes”, he could somewhat make out the reason stated for his illness as “a medical condition”.
The court, meanwhile, heard that while watching the news on television, the supervisor spotted Mathebula participating in a protest march called by the EFF on the first two days that he had called in sick. The supervisor gathered visuals from YouTube in order to confront Mathebula.
In response, Mathebula asked his supervisor how this came to his attention so “they are on the same page”.
The supervisor then told him that he saw it with his own eyes on TV.
Mathebula responded that he did tell his supervisor on September 7 that he did not feel well. “Later on that day, I became a 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.”
Mathebula was later served with a disciplinary notice for alleged dishonesty, and he was subsequently fired.
Judge Moshoane said 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.”
The judge pointed out that Mathebula was excused from work because he claimed he did not feel well. If he was truthful and said he wanted to stay away to participate in a march, it would have been a different story.
The judge also pointed out that the doctor had booked him off two days after the march.
“It seems to be so that the employee took advantage of the provisions in the policy of Sars 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.”
The judge added that despite calling in ill, Mathebula attended a protest action, where he sang and clapped hands in support of the action.
“Surely, a person who is not feeling well cannot be expected to act in that manner. Mathebula expected to get away with the enjoyment of supporting the protest march while claiming to be sick.
“The probabilities were overwhelming that Mathebula was not sick and, in fact, he was malingering 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,” the judge said.
Pretoria News