Have you been fired for taking sick leave? Here’s what you can do

6 October 2020 by Petrus Khumalo

From an employer’s perspective it is a well-known concept that your employee’s health and how it affects his/her ability to work may have financial implications for both employer and employee.

A scenario less considered in my view though is the timing of returning to work and the implications thereof on the employee.

South Africa remains an unequal society in many ways and the vulnerable sector of our society still bear the brunt in respect of much inequality and unfairness. I was recently reminded of the practical implications hereof.

Let us take an example of a Thulani a security officer, who worked for one of the prominent Security solutions companies fell ill. He reported it to his employer and took two consecutive days off to recover. His sick leave had not been exhausted. Following the second day, he still did not feel well enough – given that his job entailed long patrols at night. Because he could not afford a private medical practitioner, the employee went to a public clinic for a consultation. His treating medical practitioner urged him not to return to work saying his illness was serious and he would need a few more days and medication to recover.

He has since been dismissed.

Steps that an employee may take

Many employees, like Thulani, lack knowledge about the steps to take before and upon the experience of the abuse of their rights. They have the right to refer the type of labour disputes to adjudication bodies or tribunal such as the CCMA or a Bargaining Council.

In some instances, the employer would have recognized rules or policies about what qualifies and is accepted as a medical certificate. However, there is case law on this very aspect.

In Kievits Kroon Country Estate vs CCMA and others, the Labour Court held that a medical certificate from traditional healers is valid and employers must accept it.

Protection offered to employees

Section 23 of the Basic Conditions of Employment Act 57 0f 1997 (“BCEA”) as amended, states that an employee is only required to furnish a medical certificate if an employee is or has been absent from work for more than two consecutive days or more than two occasions during an eight week period.

The BCEA provides protection for employees like the abovementioned, who claim that they were unfairly prejudiced by the employer who requested that they will only accept medical certificate from private medical practitioners.

If the employer disagrees with the doctor about your ability to return to work, the employer could contact the doctor to make sure the employee did visit the doctor for a consultation or not.

If you as an employee are uncertain of your rights in terms of sick leave, alternatively if you are an employer uncertain of your compliance in terms of sick leave and the BCEA, contact a labour law firm for assistance in this regard.

Petrus Khumalo is a Candidate Attorney at SchoemanLaw Inc.