Everything you wanted to know about sick leave
A blog article by: Carla de Waal
It’s inevitable: There are days when one feels ill and cannot report to work or might have a medical emergency that requires rest and recuperation.
Sick leave is regulated by Sections 22(1) to 22(4) of the Basic Conditions of Employment Act (“the Act”), and a sick leave cycle starts as soon as an employee begins employment.
What exactly is a sick leave cycle? During 36 months beginning on the first day of employment, employees are eligible for paid sick leave with the same employer. The number of sick days should be equivalent to the exact number of days that an employee works in a typical 6-week period. Here’s a practical example of how this works: If you work 5 days a week you are entitled to 30 days of sick leave on full pay. This means that during a 36-month cycle (3 years) you are entitled to 10 days of sick leave per year.
There is an exception though: during the first six months of employment, an employee is only entitled to one day’s sick leave for every 26 days worked. If an employee needs extra sick leave during this time, it is unpaid leave.
To ensure that the system is as fair as possible, there are measures in place to prevent abuse. In terms of Section 23 of the Act, an employer is not required to pay an employee during sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions within an eight-week period, and at the employer’s request, the employee does not produce a medical certificate stating that they were unable to work on account of sickness or injury.
What if I’m sick on Friday or before a public holiday? If an employee is sick for one or two days the employer must grant sick leave, even if the employee is not booked off by a medical practitioner. If an employee is absent on a Friday, Monday, or the day before or after a public holiday, then an employer may not require a medical certificate. But if an employee is absent for more than two consecutive days (for example the Friday and the Monday) or on more than two occasions in an eight-week period, the employer can request a medical certificate. If an employer can prove that an employee was not sick, disciplinary steps may be taken against the employee.
Real cases you need to know about
In the matter of UASA obo Adams / Atlantis Foundries (Pty) Ltd  4 BALR 347 (MEIBC) the employee, who had been booked off for back pain, travelled to Namibia for a fishing trip. According to the employer, he “dishonestly claimed sick leave to travel to Namibia for a fishing trip” and was dismissed.
The employee denied that he had faked back pain but admitted that he had taken the trip. 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 employee’s questionable conduct by missing an appointment with their neurosurgeon and travelling to Namibia. The employer was ordered to reinstate the employee and, in addition, pay the employee 6 months’ salary in back pay.
And then, in Woolworths (PTY) LTD v CCMA and others PA12/2020, an employee was charged and dismissed for gross misconduct when an employee informed his manager that he was unable to attend work because he was too sick. Yet on the same day, during working hours, he travelled from Jeffreys Bay to Port Elizabeth to attend a rugby match with his father.
The employee subsequently referred the unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the CCMA arbitrator found the employee’s dismissal was procedurally and substantively unfair and reinstated him with full back pay as the employee was not charged with dishonesty and therefore the trust relationship was not broken.
Subsequently, the employer launched a review application of the award and on review, the Labour Court disagreed with the arbitrator’s decision on procedural unfairness but agreed that the employee’s dismissal was substantively unfair as the company could not prove that the employee acted dishonestly or that there was a policy in place that required an employee to report for duty when his condition had improved.
The Labour Court’s decision was appealed by the employer’s company and the Labour Appeal Court considered that the employee was charged with gross misconduct, essentially for abusing sick leave. The Labour Appeal Court did not agree with the above approach as the employee was required to act with integrity and abide by the company’s policies, procedures and code and most importantly set a good example for his subordinates.
The Appeal judgment broadcasts a message that Commissioners of the CCMA should not be overly technical in assessing disputes against employees but should adopt a ‘common sense’ perspective in assessing the true harm caused by an employee’s misconduct.
So where does case law leave employers and employees?
Employees who claim to be sick and engage in non-work-related activities while claiming sick leave shouldn’t expect to get away with their dishonest behaviour. Employers expect their employees to conduct themselves reliably and honestly. A continued employment relationship is unworkable if the trust relationship is broken which is why it’s advisable to take annual leave instead of a sick day if you simply need a day off.
For more information: CarlaDW@hammondpole.co.za