By Tania Broughton, GroundUp
An employee of the South African Revenue Service (SARS) who was seen in 2020 “singing and clapping” during an EFF protest when he was actually on sick leave has finally been given the go-ahead.
Judge Graham Moshoana of the Johannesburg Labor Court on Monday set aside a previous ruling by the Commission for Conciliation, Mediation and Arbitration (KVBA). The KVBA had earlier found that Benneth Mathebula’s dismissal was fundamentally unfair and that he should be re-employed and reimbursed for the time he was out of a job.
“When he pretended to be sick, his intention was to mislead SARS,” Moshoana ruled, adding that Mathebula’s dismissal was fair.
Some of the evidence in the case was that on 7 September 2020, Mathebula sent a message to his manager, Pule Mantso, saying he “didn’t feel well”.
The next day he sent another message saying the same thing.
On 9 September 2020 he consulted a doctor and he was canceled until 11 September “due to a medical condition”.
While Mantso was watching the news on television at this time, he saw Mathebula taking part in a protest organized by the EFF against the retail group Clicks.
Mantso saw him “singing and clapping”.
Mantso decided to confront Mathebula in writing. In response, Mathebula asked how this had come to Mantso’s attention.
“It came to my attention when I saw you on the 19:00 news, but I expected you to be ill,” Mantso said.
Mathebula told Mantso that he had taken medication that day and “felt a little better”.
He argued that a friend visited him and suggested that he accompany him to Sandton.
“I didn’t see anything wrong with that, in fact I thought it might be good to get out of the house and stretch my legs a bit, because I wasn’t bedridden,” he said.
“So, it’s true that you may have seen me. Unfortunately, I got worse the next day, so I let you know.”
In November of the same year, Mathebula was charged with dishonesty at SARS. In March 2021, he was found guilty and dismissed.
He referred an unfair dismissal dispute to the KVBA where commissioner Faizel Mooi found in his favour.
However, SARS approached the labor court to have Mooi’s ruling reviewed and set aside.
Moshoana found that it was a common cause that Mathebula took part in the demonstration on a day when he had the “audacity” to inform SARS that he was not feeling well.
“Although he was not well enough to go to work, he was well enough to take part in a demonstration.
“It must be that when he told his manager that he was not feeling well, he was not being sincere,” the judge found.
“If he had indicated to his manager that he wanted to be excused for the day to participate in the demonstration, he would not have been fired.”
The judge said Mathebula only sought medical help two days later and the doctor’s certificate “did not remotely suggest that the medical condition he was diagnosed with had occurred before the day of the examination”.
“It seemed that Mathebula abused the SARS policy that an employee who is ill for two days or less does not need a medical certificate.”
The judge said Commissioner Mooi relied on speculative evidence that Mathebula did not intend to deceive his employer.
“The odds that he wasn’t sick are overwhelming. If he could clap and sing, it must follow that he would be able to perform his contractual duties.
“However, his first reaction when confronted was not that of an honest employee… and his attempts to explain himself further were weak.”
Moshoana found that the KVBA’s judgment did not pass the constitutional composition and requirements and set it aside.
- This post was originally published on GroundUp and is used here with permission.