Sick leave abuse

May 3, 2023 | Business owners tips and advice

Earnings threshold 2023: It is vital for every employer to determine which employees earn in excess of the earnings threshold and which employees earn below the threshold, as this has a huge impact on the terms and conditions of employment the employer and employee can agree on. The earnings threshold has seen yet another increase as from 1 March 2023 and is currently set at R241 110.59 (a monthly amount of R20 092.55). The previous threshold of R224 080.48 has been in effect since 1 March 2022.
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When is it due?

Section 22(1) to 22(4) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) stipulates that an employee is entitled to paid sick leave. During the first six months of employment, paid sick leave is calculated as one day paid sick leave for every 26 days worked. In a 36-month leave cycle, an employee is entitled to 30 days paid sick leave (if the employee works five days per week) or 36 days paid sick leave (if the employee works six days per week). This leave cycle commences, irrespective of a probation period, on the first day of employment and paid sick leave taken during the first six months of employment can then be deducted from the total leave cycle. Remember sick leave is only due to employees genuinely too ill to perform their duties.

Is it paid or unpaid leave?

Firstly, is paid sick leave due? If yes, the employer must determine whether a medical certificate is needed. A medical certificate has to be presented if an employee is absent from work for more than two consecutive working days, or on more than one occasion within an eight-week period.

If paid sick leave is not due, there are two options:

  1. the employer can process it as unpaid leave;  or
  2. process it as paid leave and deduct it from the employee’s annual leave.

An employer is not required to pay an employee in terms of Section 22 of the BCEA if the employee has no available sick leave days, does not provide a valid medical certificate when required to do so, or is absent without the employer’s permission.

Abusing sick leave

In general, if a valid medical certificate is provided, the absence should be dealt with as a form of incapacity as the employee is inherently unable to meet fixed performance standards due to ill health.  When the employer however suspects abuse of sick leave, it is important to follow a fair process to investigate a claim of misconduct to produce evidence.

Ask these questions to determine if the employee’s behaviour amounts to misconduct or incapacity:

  • Is the employee taking a certain number of sick leave days in a short period of time?
  • Is the employee’s sick leave exhausted?
  • Do the dates of the sick leave suggest a pattern, i.e. is the employee typically sick on Mondays and Fridays, before or after a public holiday, or after payday?
  • Has the employee submitted valid medical certificates?
  • Is there any evidence that suggests that there may be other reasons for the employee’s absences (e.g. domestic violence, depression)?

Consider these two procedures in serious cases of incapacity or misconduct:

  • Incapacity procedure:  The frequently absent employee is genuinely suffering from ill health and could potentially be dismissed for incapacity.  Have the employee undergo a medical investigation to determine if the employee is capable of performing their duties and meeting the employer’s fixed operational standard.
  • Disciplinary procedure:  The medical investigation shows that the employee has no severe health problems.  The employer is now alerted to investigate sick leave absences in future, to determine if the employee was really sick or should be charged with misconduct lead by a medical investigation to proceed with a disciplinary hearing.

It is important that employers deal with issues in the workplace as quickly and effectively as possible, while taking care to act objectively and consistently.  By being proactive, the employer can greatly contribute towards the business’s sustainability and profitability and ensure a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive to growth.

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