SARS wins case to fire 'sick' employee

The SA Revenue Service (SARS) has won its case to dismiss an employee who took time off claiming to be sick, only to be seen on TV by his bosses at an EFF protest at Clicks in Sandton.

The employee, junior investigator Benneth Mathebula, was initially fired by the tax agency for dishonesty in early 2021.

But he won his appeal at the Commission for Conciliation, Mediation, and Arbitration (CCMA) later that year, which ordered that he be reinstated and given back pay.

The Labour Court has now overturned the CCMA's ruling, finding that SARS was within its rights to fire him.

Both sides agreed that Mathebula took two sick days' leave from SARS in early September 2020. On the third day, he saw a doctor in line with the tax agency's policy. He was given more time off at home.

When he returned to work, his supervisor asked him why he had seen him on television participating in an EFF march when he had been off sick.

Mathebula didn’t deny he had been at the march, which the EFF held to protest a hair advert which it said was racist. The party held marches at Clicks stores throughout South Africa.

He told his supervisor that while he did feel sick at the start of the day, he felt better after taking some medication.

"A friend came to check on me and I asked if I could accompany him to Sandton," he said. "I did not see anything wrong with that. Actually, I thought maybe it is good to go out and stretch a bit, as I was not bedridden and I felt probably after that I would be fine."

SARS didn't think much of his explanation and fired him in March 2021 for dishonesty following a disciplinary hearing. The tax agency said at the time that Mathebula had "deliberately and intentionally" misled it.

Mathebula appealed his dismissal to the CCMA, which found his dismissal to be unfair.

The arbitration body said there were reasonable grounds to conclude that Mathebula was sick on 7 September, as he had claimed. It also found there was insufficient evidence to prove he had intended to mislead his employer.

SARS then appealed his reinstatement to the Labour Court.

'Malingering'

This court has now ruled that the CCMA was wrong to order that Mathebula be reinstated.

"Mathebula expected to get away with the enjoyment of supporting the protest march while claiming to be sick," said Judge Graham Moshoana in a ruling handed down this week.

"The probabilities were overwhelming that Mathebula was not sick and in fact he was malingering in order to avail himself for the protest action."

The judge found that while Mathebula did go to the doctor for a sick note, he only did this on 9 September, after the protests had already taken place.

And the sick note only described the nature of his illness as "absence due to medical condition", which the judge noted didn’t explain much.

"Not being a medico, this court has never come across such an illness," noted the judge in a footnote.

The court ruled that, even though the medical certificate was accepted, it could not prove that he was sick on 7 and 8 September 2020, when the protests took place.

"The only inference to be drawn with regard to his state of mind is that when he asserted and faked illness he must have intended to mislead SARS to excuse him from work in order for him to attend the protest action."-Fin24