Sick leave and your rights

Sick leave and your rights

With the low employment rate in South Africa, you may feel you could jeopardise your job by taking too much sick leave. But what are your rights when it comes to this type of leave. Can your employer take disciplinary action against you if they feel you are abusing it? Nicolette Dirk got some legal advice to find out what your rights are when it comes to sick leave.


What type of leave am I entitled to when sick?

According to Phil Davel, a legal advisor at Solidarity legal services department, every employee is entitled to six weeks’ paid sick leave in a cycle of 36 months. This means that if you work a five-day week, you are entitled to 30 working days sick leave.

You are entitled to sick leave if you fail to go to work due to illness or injury.


When do you need proof of illness?

According to the Basic Conditions of Employment Act, an employer may require a medical certificate before paying workers who are absent from work for more than two consecutive days or more than twice in the past eight weeks. This means that by law you are only obliged to produce a sick certificate if you have stayed out of work for more than two days or have been ill regularly .  Davel says an employers’ leave policy can however require medical certificates to be obtained after sick leave has been taken.


Can your employer take disciplinary action against you for abusing this type of leave?

Despite the fact that the law is usually on the employee’s side when it comes to sick leave, an employer can take action if an employee is abusing their sick leave.

But this will mean that the employer will have to prove these claims, which is not always easy. Some employers believe an easy way to validate the employee’s illness could be to contact the doctor who booked him/her off. But doctors are bound by a code of patient-doctor confidentiality, so an employer would not be able to verify anything this way.

It can  happen that you are spotted, for example, in a mall or taking part in a race, when you called in sick with the flu. Or a family member or friend confirms you are not at home when the employer calls.  An employer could also spot a pattern of sick leave taken for instance before or after weekends or public holidays.

When social media becomes a tell-tale

Social media is a wonderful way to communicate your activities, but a very bad idea when you have called in sick for work. “My personal advice to people who are booked off ill from work is to rather try keep away from social media for a while,” says Davel.

But even then, your boss will need a strong case to push forward with disciplinary actions when it comes to sick leave. After prior warnings, related to the abuse of sick leave, your boss could give you a final written warning. Davel however warns that should your boss bring a strong case of untrustworthiness or dishonesty, and can prove it, you could be dismissed immediately.

What happens when you have no more sick leave days left?

For every three year cycle you qualify for 30 sick leave days. But what happens when these leave days have been used up? Davel says that an employee may request in writing that the employer takes normal leave, otherwise it will go as unpaid leave.

Moneybags says:

If you feel you are the victim of unfair treatment when it comes to your rights in the workplace, the first thing you should do is contact your union.

You could also contact the Department of Labour on