Sick leave, medical certificates and abuse of sick leave

Employees who pretend to be too sick to work and then attend a non-work-related activity, should not expect to get away with their dishonest behaviour.

By Nicolene Erasmus

Updated 2022/03

What the Basic Conditions of Employment Act prescribes:

22. Sick leave.—(1) In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following—

1. an employee’s commencement of employment; or
2. the completion of that employee’s prior sick leave cycle.

(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).

23. Proof of incapacity.—(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.

(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.

What does it really mean?

• From the moment an employee commences his employment, the sick leave cycle starts.
• This section does not apply to employees who work for an employer less than 24 hours per month. These employees will have to negotiate sick leave with their employers.
• An employee who works 5 days per week is entitled to 30 days every 36 months. An employee who works 6 days per week is entitled to 36 days’ sick leave every 36 months. Where an employee works Monday to Friday plus every second Saturday, the employee is entitled to 33 (30 + 3 Saturdays) days’ sick leave.
• During the first six months of employment, an employee (this also applies to an employee on a fixed-term basis for a period of 6 months or less) is entitled to 1 day’s paid sick leave for every 26 days worked. If the employee needs extra sick leave, it will be in the form of unpaid leave.
• What about employees who are employed on a fixed-term basis for a period of, for example, 8 months? There is nothing in the Act that suggests that these employees are not entitled to all the sick leave afforded to them by the Basic Conditions of Employment Act. It may happen that an employee who works 5 days per week may be absent for reasons of illness for a period of 30 days. The employer has to accept that – on condition that the employee is booked off by a medical practitioner.
• An agreement in terms of which an employee agrees to take not more than 10 (or any number of days less than the number of days to which an employee is entitled) days sick leave per year is invalid. On the first day of the seventh month, an employee is entitled to ALL his/her sick leave.
• Only an employee who is too sick to work may claim paid sick leave. If the employer is in a position to prove that the employee was not sick, disciplinary steps may be taken against the employee.
• If the employee is sick for one or two days, the employer has to grant paid sick leave, even if the employee is not booked off by a medical practitioner.
• If the employee is absent for “more than two consecutive days” without a medical certificate, the employer does not have to pay the employee. This means that an employee needs to produce a medical certificate on the third day in order to receive his/her pay for the three days.
• May an employer require a medical certificate when the employee is absent on a Friday or a Monday, or the day before or after a Public Holiday? No! The Basic Conditions of Employment Act allows an employee to be “absent from work for more than two consecutive days or on more than two occasions during an eight-week period” without a medical certificate. An employee who does not work on Saturdays and Sundays is NOT absent from work for more than two consecutive days. The employee is absent only on the Friday and the Monday (two consecutive workdays) – and will only have to produce a medical certificate if he/she is also absent on the Tuesday. The second part of subsection (1) may also be used to justify this viewpoint. The employee’s absence on the Friday could be seen as the first occasion, his/her absence on Monday as the second occasion – which means that the employee has not been absent from work for “…more than two occasions during an eight-week period”.
• What is a medical certificate? It is a document issued and signed by someone who is certified to diagnose and treat patients and who is registered with a professional council. This may include dentists, psychologists, interns and nurses. Some sangomas or traditional healers do belong to a professional association, but as this is a voluntary association, they are excluded as persons who may issue a medical certificate.
• What is the “status” of a medical certificate? A medical certificate constitutes indirect evidence of an employee’s illness. Where a medical certificate merely states that the employee was examined by a doctor, and that the doctor “was informed” that the employee was sick, the medical certificate cannot be accepted as proof that the employee was in fact ill.

In the matter of UASA obo Adams / Atlantis Foundries (Pty) Ltd [2021] 4 BALR 347 (MEIBC) the applicant, who had been booked off for back pain, travelled to Namibia for a fishing trip. According to the employer, he “dishonestly claimed sick leave for the purposes of travelling to Namibia for a fishing trip” and was dismissed. The applicant denied that he had faked a back pain, but admitted that he had gone fishing. The Commissioner noted that, since the medical certificate had complied with the requirements set by the Basic Conditions of Employment, the Council had to accept the medical practitioner’s direct evidence that the applicant had been unfit for work notwithstanding the applicant’s nefarious conduct in missing the appointment with the neurosurgeon and travelling to Namibia. The respondent was ordered to reinstate the applicant and, in addition, pay the applicant 6 months’ salary in back pay.

On the other hand, the Labour Court in Glencore (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2018) 39 ILJ 2536 (LC) held that, “for the Commissioner to therefore have merely accepted that Manyoni was sick based on his copies of medical certificates, when the evidence suggested that he was bent on taking leave despite it having been declined is indeed extraordinary”.

The applicant in this matter informed his supervisor that he wanted to take leave as his son was due to attend a ‘circumcision school’. When his supervisor informed him that he could not take leave at the time, the employee had nonetheless insisted that he would. In accordance with the policy, once six continuous days/shift had passed without the employee reporting for duty, he was regarded as having deserted. Upon his return, the applicant was afforded an appeal hearing, during which he had submitted two medical certificates to justify his absence. He had further stated that he had asked his colleague to pass a message to his supervisor that he was unwell, and that he had faxed through copies of his medical certificates. Glencore was not satisfied that the applicant was able to show that he had complied with the provisions of the policy by attempting to notify his supervisor of his whereabouts. It was not satisfied with his reasons for his absence, and had accordingly confirmed the dismissal.

The Court held that the commissioner had “misconceived the nature of the enquiry he was called upon to undertake, completely ignored relevant evidence, failed to properly apply his mind to material issues at hand and committed various other irregularities in the conduct of proceedings. These irregularities deprived Glencore of an opportunity for a fair trial of issues.

And then, in Woolworths (PTY) LTD v CCMA and others PA12/2020, an employee was charged and dismissed for “Gross misconduct in that on 9 June 2018, you breached company policies and procedures when you abused authorised leave in the form of sick leave when you informed your manager that you were unable to report for your scheduled shift, but was observed at an extended function in Port Elizabeth. This could have resulted in your claiming wages to which you were not entitled to in the form of sick leave if this was not picked up”.

The court held that “Manifestly, the third respondent acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties, but then travelled for at least an hour to support his local rugby team, knowing full well that he would be paid for the day. The finding of the second respondent that there had been no act of dishonesty is obviously subject to review, even if the standard for review were so onerous that an award could only be set aside on the basis of an egregious error. This is exactly the appropriate term to describe the approach adopted by the second respondent and regrettably it was repeated by the court a quo”.

Employees who pretend to be too sick to work, and then expect to get away with attending a non-work-related activity on the basis of claiming sick leave and then enjoying the benefits thereof, should not expect to get away with their dishonest behaviour.

This article does not constitute legal advice and is based on the authors interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour related matter, readers are encouraged to arrange a formal consultation with the author.