Sick Leave and its Rights, Obligations and Limitations

Sick Leave Rights

There appears to be an insurmountable amount of ignorance amongst employers and employees in respect of their rights and obligations when it comes to sick leave and the limitations prevalent when taking sick leave. The regulatory piece of legislation which governs sick leave is The Basic Conditions of Employment Act, no 75 of 1997 (“the BCEA”). Section 22 of the BCEA provides the minimum terms and conditions assigned to employees seeking time off to recover from an illness.

The sick leave cycle as prescribed by the BCEA

The BCEA provides that sick leave operates on a three-year cycle. Section 22 of the BCEA asserts that the sick leave cycle is a phase of 36 months of continuous, uninterrupted and undisturbed employment under the same employer. An employee is entitled to one day’s paid sick leave for every 26 days worked, this being the provision made for an employee’s first 6 months of employment. Once the abovementioned 6 months of employment have lapsed, the employee will then be entitled to an amount of paid sick leave that equates to the number of days the employee would ordinarily work throughout a period of 6 weeks for the three-year cycle, thus amounting to 30 days.

Sick leave should only be exercised when an employee is sick and should not be utilised for frivolous reasons. Disciplinary action can be taken against an employee if there has been a pattern of regular sick leave which affects normal business operations. The aforesaid will be the route an employer would take should he or she prove that business operations is being jeopardised by the continuous and excessive sick leave being taken.

Medical certificates (Section 23 of the BCEA)

Section 23 of the BCEA states that the employee is required to provide a medical certificate to substantiate their illness when they have been absent for more than 2 consecutive days. The aforesaid will also apply in the case that the employee has been absent for more than 2 days during an 8 week period. The BCEA states that a medical certificate from a traditional healer will be valid if the traditional healer is a registered practitioner, who is defined as any practitioner certified to diagnose, treat and attend to patients and who is registered with a professional council as established by an Act provided for by Parliament. The aforesaid was made evident in the Labour Courts’ judgment in the case of Kievits Kroon Coountry Estate (Pty) Ltd v CCMA and others [2011] 3 BLLR 241 (LC).

It is worth noting that if the employee has utilised all paid sick leave to which they are entitled, for example, in the first year of their employment, the employee will be legally obliged to take unpaid leave or annual leave by agreement with their employer if the employee happens to become sick after such time.

 

Should you be an employee who finds yourself in the dark about the rights pertaining to sick leave and/or if you are an employer seeking more knowledge as to whether you have been complying with BCEA regulations for sick leave, please do not hesitate to contact BBPLAW INC. for further insight.

 

 

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