Sick Leave

Sick leave works in a three-year cycle.

  • An employee who works five days per week is entitled to 30 days paid sick leave.
  • An employee who works six days per week to 36 days during a three year cycle.

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. An employee may take one day’s paid sick leave for every 26 days worked during the first six months of employment and thereafter an employee may take the number of days he/she normally works in six weeks during each three-year cycle.

An employee may be requested to produce a valid medical certificate if he/she has been absent from work for two days in a row or more than twice in eight weeks. If the employee does not have a valid medical certificate the employer does not have to pay the employee for the sick leave taken. If the employee lives on the employer’s premises and it is not reasonably practical for him/her to obtain a sick certificate, the employer should not withhold unless the employer provides reasonable assistance to the employee to obtain certificate.

Dismissal for ill-health or injury

Illness or injury of a serious nature may be a valid reason for dismissal. The specific circumstances of each case must be considered to determine the fairness of dismissal. The first step is to determine whether the injury/illness is temporary or permanent. An expert opinion may be necessary to determine the seriousness of the incapacity, and the likely time that an employee may be absent. The absence need not be continuous and includes recurring periods of absenteeism.

Permanent incapacity

Where the incapacity appear to be of a permanent nature, the employer should establish whether it is possible to find alternative employment for the employee; and adapt the duties or work circumstances of the employee to accommodate the disability/illness. If no such possibilities exist, then dismissal may be justified.

Temporary incapacity

The employer should investigate the severity of the incapacity; the employee should be given an opportunity to state his/her case during the investigation and may be assisted by a trade union representative or a fellow employee. If the employee is likely to be absent for an unreasonably long period of time, the employer must consider all the alternatives short of dismissal.

When reviewing the alternatives and deciding what is a ‘reasonable period’, the employer must consider the following aspects —

  • the nature of the job;
  • the period of absence;
  • the seriousness of the illness/injury; and
  • the possibility of a temporary replacement.

An employee who contributes to the unemployment fund may, in certain circumstances, have the right to apply for illness benefits on account of his or her illness. Employers should make a special effort to accommodate employees who have been injured at work or who contracted a work-related disease.

In terms of case law, counselling is highly desirable when dealing with dismissal or instituting other measures relating to illness/injury in the workplace. Rehabilitation and/or counselling may be considered, for example for alcohol or drug abuse. Illness/injury and misconduct issues sometimes overlap, e.g. abuse of sick leave or where an employee reports for work in a drunken state, depending on the specific case.

Compensation Commissioner

With some exceptions, any employee who suffers a workplace related injury or disease is entitled to compensation. To qualify for compensation, the employee must be able to show that the injury or disease is work-related.

Jurisdiction

Unfair dismissal disputes (ill-health or injury) must be referred to the CCMA.

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