Addressing The Abuse of Sick Leave: Insights from Labour Court Cases
Employee absenteeism due to health issues is a significant challenge for many organizations in South Africa.
However, sick leave is also typically considered a legitimate reason for an employee to be absent from work.
While it is accepted that employees should be entitled to sick leave when genuinely unwell and/ or undergoing treatment for chronic conditions, some individuals misuse this benefit – resulting in financial losses, decreased productivity, employee burnout, and low morale amongst remaining staff members.
The recent Labour Court cases, SARS V CCMA & OTHERS (JR 2243/2021) and EPIBIZ (PTY) LTD V CCMA & OTHERS JR616-18), shed light on the widespread issue of sick leave abuse by employees who are not genuinely ill.
In SARS v CCMA & Others, an employee messaged his supervisor, claiming illness, and subsequently took sick leave. However, he was later observed participating in a political protest while on leave. When confronted, he admitted to attending the protest, arguing he felt better that day. His employment was terminated for misconduct, which led to a dispute at the Commission for Conciliation, Mediation, and Arbitration (CCMA). The CCMA initially ruled in his favor, but the Labour Court ultimately deemed the dismissal fair, citing the employee’s dishonesty and his ability to attend the protest while on sick leave.
In another case, EPIBIZ (PTY) LTD V CCMA & OTHERS, an employee was placed on precautionary suspension during a misconduct investigation but was later cleared of all charges in her disciplinary hearing. Instead of returning to work, she repeatedly obtained medical certificates citing “Consultation” as the reason for her absence. Her employer’s attempts to understand her condition were hindered by vague responses. The Labour Court upheld the dismissal, stating that emotional trauma resulting from a workplace situation was not an illness under labour law (Schedule 8 of the Labour Relations Act: The Code of Good Practice – Dismissal).
The Court also highlighted the growing issue of sick leave abuse in South Africa, emphasizing that doctors should not contribute to these deceptive practices. The Court further reaffirmed the legal requirement that medical certificates (considered hearsay evidence) should be supported by an affidavit from the treating doctor or accompanied by the doctor’s oral testimony in legal proceedings.
KEY LESSONS TO BE LEARNED:
- Employees have a legitimate entitlement to sick leave, but misuse of sick leave is regarded as dishonest misconduct and can lead to dismissal;
- Employees owe a duty to their employers to refrain from dishonest or fraudulent behaviour;
- Employers, when suspicious of sick leave abuse, have the right to question the validity of medical certificates and investigate further by contacting the issuing medical practitioner; and
- In legal proceedings, medical certificates should be substantiated by either an affidavit from the treating doctor or the doctor’s oral testimony – as they are considered hearsay evidence.
These cases illustrate the South African Courts’ increasing vigilance in addressing sick leave abuse, recognizing its prevalence in workplaces and its adverse impact on businesses.
Zahnri joined CK as an associate in April 2023.
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