1 May 2025
Employees who falsely claim to be too ill to work, only to participate in non-work-related activities while on sick leave, should not expect to escape the consequences of their dishonesty.
The Basic Conditions of Employment Act outlines the following in Sections 22 and 23:
22. Sick leave
(1) In this Chapter , “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following—
an employee’s commencement of employment; or
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.
The Basic Conditions of Employment Act
TO explain what the act means:
The sick leave cycle begins from the day an employee starts their employment with the company.
The above sections do not apply to employees who work less than 24 hours per month; their sick leave must be negotiated with the employer.
Employees working five days per week are entitled to 30 days of sick leave every 36 months (every three years).
Employees working six days per week are entitled to 36 days of sick leave every 36 months.
During the first six months of employment, even employees on a fixed-term basis for six months or less are entitled to one day of paid sick leave for every 26 days worked.
Any additional sick leave beyond the entitlement will be unpaid.
Employees on a fixed-term basis, for example, an eight-month period, are entitled to the full sick leave afforded to them.
If an employee who works five days per week is booked off by a medical practitioner for more than 30 days, the employer must accept it.
Any agreement between an employee and employer that reduces the employee's entitled sick leave below the statutory number of days is invalid. Employees are entitled to all their sick leave on the first day of the seventh month.
Only employees who are genuinely too sick to work may claim paid sick leave.
Disciplinary action may be taken if the employer can prove that the employee was not actually sick.
If an employee is sick for one or two days, the employer must grant paid sick leave, even without a medical practitioner's note.
If an employee is absent for more than two consecutive days without a medical certificate, the employer is not obligated to pay the employee.
An employee must present a medical certificate on the third day to receive pay for all three days.
The basic conditions of employment allows an employee to be absent for more than 2 consecutive days or on more than 1 occasion in an eight-week period without a medical certificate.
An employee who works only from Monday to Friday cannot be considered absent for more than 2 days if they are only absent on the Monday or Friday.
Once an employee is absent for more than 2 consecutive work days such as being absent on the Friday, Monday ( which are 2 working days) but then still being absent on the Tuesday (3rd working day) then they will be required to hand in a medical certificate. We can justify this by looking at the second part of subsection (1) in the BCEA.
A medical certificate is a document issued and signed by a qualified person certified to diagnose and treat patients and registered with a professional council.
Some Sangomas or traditional healers belong to a professional association, but it is a voluntary association, so this excludes them from being able to issue a medical certificate.
A medical certificate serves as indirect evidence of an employee’s illness.
A medical certificate that merely states the employee was examined and that the doctor was informed of the illness cannot be accepted as proof that the employee was genuinely ill.
