Calling in sick

The Fine Line Between Sick Leave and Sneaky Leave

There is a pervasive misconception that a medical certificate, commonly called a “sick note,” serves as a de facto passport for employees to take leave from work and engage in personal activities. While sick leave is legally recognised, and a sick note provides employers insight into employees’ medical needs, particularly the necessity for rest and recuperation, it should not be misappropriated to justify absences unrelated to genuine medical conditions.

The Basic Conditions of Employment Act (BCEA)¹ outlines the framework governing sick leave in South Africa. Relevant sections include:

Section 22: Sick leave

(1) In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following-
(a) an employee’s commencement of employment; or
(b) 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).
(5) Subject to section 23, an employer must pay an employee for a day’s sick leave-
(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee’s usual pay day.
(6) An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in terms of this section if-
(a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and
(b) the employee’s entitlement to pay-
(i) for any day’s sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and
(ii) for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in terms of subsection (2).

Section 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 practitioner 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.

Section 22 of the BCEA elucidates the entitlement to sick leave, emphasising its purpose as time off for recovery. Conversely, section 23 of the BCEA outlines the employer’s right to require medical proof for absences, reinforcing that sick notes are not infallible documents beyond scrutiny. Employers retain the prerogative to verify the authenticity of sick notes and may contact the employee’s medical practitioner to ascertain their legitimacy, albeit without breaching confidentiality regarding the employee’s health. If an employer suspects sick leave abuse, they are entitled to initiate disciplinary processes for misconduct.

Several case law examples illustrate the repercussions of misusing sick leave:

In NEHAWU obo Matras v Commission for Conciliation, Mediation and Arbitration,² the employee had a sick note that allowed him three days sick leave off work. During that time, he attended a family wedding. He had attempted to get time off work to attend the wedding but was unsuccessful. His employer was thus unconvinced by the legitimacy of the medical reasons for his absence and subsequently dismissed him.

In Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration,³ the employee advised his manager that he had fallen ill and would not be coming into work that day. He and his father travelled to watch a rugby match on the day he was supposedly sick. He was duly dismissed. Holding that his dismissal was both substantively and procedurally fair, the court noted that the employee 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.

In South African Revenue Services (SARS) v Commission for Conciliation, Mediation and Arbitration (CCMA),⁴ the employee, a junior investigator at the South African Revenue Service (SARS), called in sick. After two days of being off work unwell, he went to see a doctor on the advice of his manager. The doctor who attended to him issued him a sick note that recommended two days off work. Whilst watching the news on television, the employee’s manager spotted the employee participating in a protest march called by the Economic Freedom Fighters (EFF) against Clicks (Pty) Ltd on the two days that he (the employee) had called in to work sick. The employee was subsequently charged with dishonesty and dismissed.

In Glencore (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration,⁵ the employee had requested to take leave for the same period that he was subsequently absent. His request was declined based on the employer’s operational requirements since another employee in the same role had also requested and was granted leave for the same period. In his absence, the employer invoked its disciplinary policy in terms of which if an employee were absent from the workplace for more than six consecutive shifts/days and had not reported the absence or notified a supervisor of the reasons for absence, he/she would be deemed as having deserted. Upon his return, the employee was afforded an appeal hearing at which he submitted two medical certificates to justify his absence. He further stated that he had asked a colleague to pass a message to his supervisor that he was unwell and had faxed through copies of his medical certificates. The employer was not satisfied with this and accordingly confirmed the dismissal. He initially successfully appealed his dismissal to the Commission For Conciliation, Mediation And Arbitration (CCMA) before his employer successfully appealed that CCMA decision. Setting aside the CCMA’s decision and substituting it with an order that the dismissal was fair, the court stated the following:

“For the Commissioner to therefore have merely accepted that [the employee] 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.”

Conclusion

The legislation surrounding sick leave, as delineated in the BCEA, underscores the necessity of using sick leave for its intended purpose i.e., allowing employees time to recover from illness. A sick note represents a medical professional’s opinion regarding an employee’s incapacity to fulfil work duties; however, the ultimate decision to grant leave rests with the employer, who continues to provide remuneration during this time.

Thus, employers are entitled to verify the authenticity of sick notes and to take disciplinary action against misuse. As established in Mgobhozi v Naidoo NO⁶ and echoed by the Supreme Court of Appeal in Old Mutual Life Assurance Co SA Ltd v Gumbi,⁷ medical certificates are regarded as hearsay unless substantiated by additional evidence, such as an affidavit from the medical practitioner or their testimony.

In summary, while sick leave is a critical employee benefit, it is essential to recognise its boundaries and the ethical implications of its misuse. Upholding the integrity of sick leave policies fosters a workplace environment rooted in trust and accountability. Dishonesty regarding sick leave erodes such trust between employers and employees and incurs significant consequences, including dismissal. Thus, it is evident that sick notes are not a license for employees to engage in personal activities during work hours. From the wealth of jurisprudence surrounding this matter, the general rule appears to be that if an employee is not well enough to execute their duties at work, they should not be well enough to execute their personal activities either. That’s what annual leave is for.

Written by Theo Tembo