In terms of Section 22 of the Basic Conditions of Employment Act, an employee may have no more than 30 day’s sickleave in a 36 month leave cycle (in other words 1 day sick leave every 6 weeks). The leave cylce commences on the day the employee commences employment or on completion of the previous sick leave cycle.
If the employee is absent from work for more than 2 consecutive days or on more than 2 occasions during a 8 week period, the employer is not obliged to pay the employee, unless the employee has provided a medical certificate which states that the employee was unable to work for the period of his absence as a result of an illness or injury.
Every employer should have a sick leave policy in place which governs such aspects absenteism, submission of medical certifcates, absconment etc.
The worst strategy with sick leave abuse and frequent absence is to ignore it, hoping that it will disappear or sort itself out. More often that not, if left unattended, the frequency and period will increase and it is often coupled with other misconduct such as fraud, late coming, poor performance, poor relations with other employees and insubordination.
Another problem is when employers have codes of conduct on sick leave, absence and abuse of sick leave, but those codes are not consistently applied by management. Employees will certainly abuse this inconsistency, causing a frequency of abuse.
Another problem is that some employees feel they are owed the sick leave and if they don’t use it, they lose it. It must, however, be born in mind that sick leave is not an entitlement, but a benefit that the employee may apply for if he or she has met the requirements of the employer, such as a valaid medical certificate. Please read my previous post “Medical Certificates”.
Can medical certificates be challenged?
Yes, provided that the medical certificate does not comply with the relevant requirements (see my post of “Medical Certificates”).
In the matter of Imatu obo F.A Ward v Ethekwini Municipality 2009 18 SALGBC 8.17.6 the employer refused to entertain or accept the medical certificate issued by a doctor. It was ruled that while employers had a right to challenge a medical certificate, a medical expert had testified that the applicant’s medical certificate for the limited period of 9 June 2008 to 30 June 2008 was genuine and authentic. The respondent’s refusal to entertain applicant’s medical certificate was therefore a serious procedural irregularity amounting to unfairness. The fact that an errant employee might have little or nothing to show in his own defence does not affect his entitlement to a fair hearing.
Can frequent absenteism result in a finding that the employee is incapacitated?
In the matter of NUMSA obo Gwadela / Halberg Aluminium  8 BALR 753 (MEIBC) the Commissioner found that, although there was some dispute over which version of the absenteeism policy applied, it was clear that the manner in which the respondent handled absenteeism caused by illness, was consistent with the principles laid down by labour legislation, and underscored the fact that employees whose absenteeism exceeds a certain level have proved themselves incapable of discharging their contractual duties. The employee had chosen not to attend counselling sessions and had proffered explanations only at the final disciplinary hearing. He was the architect of his own misfortune.
Can an employee be dismissed if he was sentenced to imprisonment by a court of law for a criminal offence?
If an employee is sentenced to a period of direct imprisonment by a court of law, for an offence that has nothing to do with his employment, it will mean that the employee will not be able to render his services to the employer. Is the employer thus entitled to terminate the employment agreement?
In the matter of NUM & another v CCMA & Others (2009) 18 LC 1.11.15, the employee, was arrested for the death of another person, which was not work related. The employee was eventually convicted on a charge of culpable homicide and sentenced to five years’ imprisonment. He was informed by the employer that, because he was no longer able to work, he had repudiated his contract of employment and that the employer had accepted this repudiation.
The CCMA commissioner found that no dismissal took place in this case. The employment contract automatically terminated because of impossibility of performance on the part of the employee. The employee was the author of his own misfortune.
The Labour Court overruled this finding. The Court noted that when the employer was informed that the employee was in prison and accordingly unable to perform his duties, it had expressly accepted the employee’s “repudiation” and cancelled his contract with immediate effect. The only reason given by the commissioner for the conclusion that the termination did not constitute a dismissal was that the contract terminated “automatically” because the employee was unable to perform his duties. This, the court found, conflicted with a number of judgments of the Labour Court to the contrary, and was clearly wrong. The commissioner had also made no effort to establish whether the incapacity in casu was temporary or permanent or, if temporary, whether the period of absence was reasonable. The Court concluded that the commissioner’s finding was unreasonable.
What must be considered in evaluating an employee’s absenteism?
Factors that should be considered include the time of the absence (Mdlalose v eThekwini Municipality (2009) 18 SALGBC 8.17.3), the impossibility of the employee to return or of the employer to trace the employee. Shorter periods can also lead to dismissal, if the circumstances warrant it (IMATU obo Gwala v City Engineers (2009) 18 SALGBC 8.17.2).
In the matter of Mdlasose v Ethekwinin Municipality  JOL 23988 (SALGBC) the requirements to be applied by an employer in determining whether absenteeism is acceptable or not was considered. It was held that the reasons for the applicant’s absence, the length of absence, the nature of his work, previous warnings and whether the employee had attempted to contact the employer during the period of absence should all be considered. The applicant had been absent from the 27 December 2006 to July 2007. While the applicant did not contact respondent during his absence, the respondent had attempted to locate the applicant. Furthermore, the applicant had not called evidence of the traditional healer by whom he claimed to have been treated for seven months. His later application to re-open proceedings to call the traditional healer was properly rejected. In the circumstances the applicant had failed to explain his absence or to show good cause why he should be reinstated. His dismissal was substantively and procedurally fair.
What is the difference between desertion and abscondment?
In SACCAWU obo Khakhatiba v Country Meat Market (Pty) Ltd (2008) 17 CCMA 8.17.1
it was found that abscondment is deemed to have occurred when the employee has been absent from work for a time that warrants the inference that the employee no longer intends to resume work. Desertion is deemed to take place when an employee expressly intimates that he will not resume work. In all such cases, the onus rests on the employee to explain the absence.
In Mtshinindo v Cashbuild Hillfox (2009) 18 CCMA 8.17.2 it was found that it is required of the employer to show that the employee did not have an intention to return to work in order to claim abscondment or desertion.