Introduction
Sick leave is a statutory entitlement, and an employee who is genuinely unable to work because of illness should not face disciplinary action simply because the absence causes inconvenience to the employer. However, sick leave can become a disciplinary matter where an employee deliberately misrepresents their illness, abuses the employer’s sick-leave procedures or otherwise acts dishonestly.
The distinction between incapacity and misconduct is therefore important. Where an employee is genuinely ill and unable to work, the employer should generally follow an incapacity process. Where the employee has falsely claimed to be ill or deliberately misrepresented the reason for the absence, disciplinary action may be appropriate.
Medical Certificates and Sick Leave
Section 23 of the Basic Conditions of Employment Act permits an employer, in specified circumstances, to require an employee to produce a medical certificate. An employer is generally not required to pay sick leave where an employee has been absent for more than two consecutive days, or on more than two occasions during an eight-week period, and fails to provide a required medical certificate.
The absence of a medical certificate does not, however, automatically mean that misconduct has occurred. The employer must consider the applicable statutory requirements and workplace rules.
Similarly, producing a medical certificate does not necessarily prevent an employer from investigating suspected dishonesty. The circumstances surrounding the absence remain relevant.
When Can Sick Leave Become Misconduct?
An employee may commit misconduct where they knowingly claim sick leave when they are not genuinely incapacitated, submit false information, misuse a medical certificate or deliberately mislead the employer about the reason for their absence.
South African case law illustrates this distinction. In Woolworths (Pty) Ltd v CCMA and Others [2021] ZALAC 49, an employee claimed to be ill but attended a rugby match. The Labour Appeal Court upheld the finding of dishonesty.
In SARS v CCMA and Others [2023] ZALCJHB 222, an employee claimed to be ill but participated in an EFF protest. The Labour Court found that the evidence established that the employee had misrepresented his condition in order to obtain leave.
These cases do not mean that an employee who leaves home or participates in an activity while on sick leave is automatically guilty of misconduct. The relevant question is whether the conduct is inconsistent with the alleged incapacity and, importantly, whether the evidence establishes dishonesty or another breach of a workplace rule.
Frequent Sick Leave
Frequent short-term absence should also be approached carefully. A pattern of absence may indicate a genuine medical condition and therefore raise an incapacity issue rather than misconduct.
The employer should distinguish between:
“Is the employee genuinely unable to work?”
and:
“Has the employee deliberately misrepresented the reason for the absence?”
The first question may require an incapacity process and medical investigation. The second may justify disciplinary action.
Investigate Before Charging
Employers should investigate the facts before deciding that sick leave has been abused. This may include reviewing attendance records, medical certificates, notification procedures, workplace policies and evidence concerning the employee’s activities during the disputed period.
Social-media photographs or other evidence may be relevant, but they should not automatically be treated as proof of dishonesty. An activity may be compatible with an employee’s medical condition even though the employee remains unable to perform their particular job.
If disciplinary action is warranted, the charge should identify the actual misconduct. “Abuse of sick leave” may be insufficiently specific unless the employee is told what conduct is alleged to constitute the abuse.
Conclusion
Employers are entitled to protect the integrity of their sick-leave system, but genuine illness should not be treated as misconduct.
The key distinction is between being genuinely incapacitated and dishonestly claiming or using sick leave. Where there is evidence of deliberate deception, disciplinary action – potentially including dismissal in serious cases – may be justified. Where the issue is genuine incapacity or recurring illness, the employer should generally consider the appropriate incapacity process.
The safest approach is therefore to investigate the facts, distinguish incapacity from misconduct, formulate the charge accurately and give the employee a fair opportunity to explain the circumstances.
Sources
- Basic Conditions of Employment Act 75 of 1997 particularly sections 22 and 23, dealing with sick leave and proof of incapacity
- Code of Good Practice: Dismissal issued under the Labour Relations Act 66 of 1995, Government Gazette No. 53294, 4 September 2025 – particularly the provisions dealing with incapacity arising from ill health or injury.
- Epibiz (Pty) Ltd v CCMA and Others [2023] ZALCJHB 207 – Relevant to the evidentiary issues surrounding medical certificates and alleged incapacity.
- Labour Relations Act 66 of 1995, including the statutory framework governing unfair dismissal and the Code of Practice: Dismissal
