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NOTES ON SICK LEAVE

21 Feb 2020

Sick leave remains a contentious issue in the workplace because of the tendency of some employees to abuse it or to “play the system”. The Basic Conditions of Employment Act 75 of 1997 (BCEA) makes it clear that the employee must conform to certain conditions before becoming entitled to the protection of the sick leave clause contained in the Act. Once the employee complies, the employer in its turn is obliged to grant certain rights, which is also described by the BCEA.

  1. Entitlement:

The BCEA allows for an employee to legitimately take up to the number of days, equal to the months the employee would work in a cycle of three years (36 months) at any time during that cycle, except for an employee with less than six month’s employment.

An employee with less than six months’ employment is entitled to one day’s paid sick leave for every 26 days worked – regardless of the nature of the contract.

An employee with more than six month’s employment is entitled to the number of days paid sick leave he or she would normally have worked over a period of six months – regardless of the nature of the contract. The employer may, however, deduct the number of days taken during the first six months from the entitlement of the first cycle.

Some employers are under the impression that the entitlement is based on a continuum, that with every year the cycle is renewed for the next three years. That is not the case, if an employee uses all the sick leave days within the first nine months of employment, that employee has no more sick leave to her disposal for the remainder of the cycle (27 months) and can only claim paid sick leave again on commencing the new cycle on day one of the fourth year of employment.

  1. Proof of incapacity:

An employee who cannot prove that he/she was prevented from working due to a valid medical reason is not entitled to paid sick leave, regardless of the duration of absence. As a rule, however, an employee is only obliged to present the employer with a valid sick note once the employee had been absent from work for alleged medical reasons exceeding two consecutive workdays, or when the employee is absent from work for alleged medical reasons on more than two workdays in a period of eight weeks. In the absence of a valid and acceptable sick note in the above context, an employee is not entitled to payment for the days absent.

(Currently a debate is going on whether an employee can be disciplined for absenteeism and also not be paid for the absenteeism for which she is disciplined. Some commissioners have held that such a practice constitutes double jeopardy.)

Only an employee who is too sick to perform the duties attached to his position may claim paid sick leave. If the employer is able to prove the contrary, the employee is not entitled to paid sick leave and disciplinary action may be instituted against the employee for both abuse of sick leave and dishonesty regarding the reason for absenteeism.

The absence for more than two consecutive days due to alleged medical reasons must be confirmed with a medical certificate “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.”

A sick note is a document issued and signed by a medical practitioner or a person certified to diagnose and treat patients. Such a person must also be registered with a professional council established by an Act of Parliament. This would include dentists, psychologists, interns and nurses but not pharmacists, traditional healers, herbalists or  sangomas. The latter may belong to a professional association which is a voluntary body and are therefore excluded from persons who may issue a valid medical certificate.

It is the responsibility of the employee to ensure that certificates state, in compliance with the BCEA, at least the following: 

  • date of the visit for medical assistance
  • certification by the health care provider whether an examination had taken place or whether the recommendation of the practitioner is only based on the information provided by the employee;
  • an indication of the prognosis – detail of the condition is not required – based on the examination;
  • whether follow-up visits would be required;
  • in the event of being booked off duty, the dates booked off;
  • the printed (legible handwriting or stamped) particulars of the health care provider and contact detail.

 In the event of an employee living on the employer’s property and are not reasonablyable to obtain a certificate, payment may not be withheld unless the employer provides reasonable assistance to obtain such a certificate.

  1. Status of a medical certificate:

Unless substantiated with additional prove, a medical certificate, like all documents and statements, remain indirect evidence of the employee’s condition. It will therefore remain “hearsay” evidence unless corroborated with other acceptable evidence.

A certificate stating that an employee was examined by a medical practitioner and that the practitioner was informed by the employee that the employee was not fit for work, the certificate cannot be accepted as proof of the condition of the employee.

The labour courts have ruled on various occasions that no medical certificate need to be accepted if they do not provide sufficient and proper information[1]. The labour courts hold the view that a medical certificate may be challenged successfully by an employer when it is deemed to be ambiguous or for an invalid reason[2].

 For more information or assistance kindly contact Elsa van Zyl PKF (VGA) Human Capital and Labour Law Practitioners on 071 333 6992. 

 

[1] AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC); Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC); Croucamp v Le Carbonne (SA) (Pty) Ltd (1995) 16 ILJ 1223 (IC) and Free State Consolidated Gold Mines (Operations) Bpk h/a Western Holdings Goudmyn v Labuschagne (1999) 20 ILJ 2823 (LAC)

[2] See for e.g. Old Mutual Life Assurance Co SA Ltd v Gumbi (211/2006) [2007] ZASCA 52; [2007] SCA 52 (RSA) (17 May 2007)


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