Dismissal of ‘ill’ Sars employee who took part in EFF march was fair, court rules

The dismissal of a SA Revenue Service (Sars) employee, who claimed he was too ill to attend work but was seen at an EFF march at Clicks in Sandton, is substantively fair.

The labour court made this finding last week as it reviewed and set aside the decision by the Commission for Conciliation, Mediation and Arbitration in September 2021 that the dismissal of Benneth Mathebula for dishonesty in 2020 was substantively unfair. The commission had also ordered Sars to reinstate Mathebula and pay him a certain amount for the loss of salary.

However, the court, in setting aside the CCMA's decision, found Mathebula's dismissal was substantively fair.

Mathebula, who was employed as a junior investigator by Sars, sent a text message to his supervisor on September 7 2020 stating he was not feeling well. The supervisor excused Mathebula from attending work. The next day, Mathebula told his supervisor he was still not feeling well.

Mathebula allegedly consulted a doctor on September 9. The doctor booked Mathebula off until September 12. 

While watching TV news, the supervisor spotted Mathebula participating in a protest called by the EFF against Clicks on the two days he had called in sick. The supervisor gathered visuals from YouTube.

The supervisor confronted Mathebula in writing and said he saw him on the news while he was expecting him to be off due to illness. 

Mathebula replied that while “I notified you I was not feeling well on September 7 2020, later on that day I became a bit better after taking some medication”. 

In November, Mathebula was served with a disciplinary notice to answer to the allegations of dishonesty.

Sars accused him of being dishonest to his supervisor by misleading him. Mathebula was found guilty and dismissed on March 24 2021.

Aggrieved, Mathebula referred an unfair dismissal dispute to the CCMA, which found his dismissal was substantively unfair. 

In its application to set aside the CCMA finding, Sars argued the commissioner failed to consider the evidence before him and came to a conclusion which no reasonable decisionmaker could have made in reinstating Mathebula. 

“It is common cause Mathebula participated in a protest action on a day in which he unashamedly and audaciously indicated to Sars he was not feeling well. It is apparent that although he was not feeling well, he felt well to participate in a protest action,” judge Graham Moshoana said. 

Moshoana said the commissioner failed to ask and deal with the relevant question of whether Mathebula was so indisposed that he could not attend to his work. 

“In light of the uncontested evidence of participation in the protest action, it axiomatically follows that he was not so indisposed that he could not attend to his work”. 

The court said he was not being truthful when communicating with his supervisor about his health. 

“Surely a person who is not feeling well cannot be expected to act in that manner.” 

The court said Mathebula expected to get away with the enjoyment of supporting the protest march while claiming to be sick. 

“It must be so that, had the manager not seen Mathebula on television, to this day Sars would have accepted its employee was too indisposed not to attend to his contractual duties.” 

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