Sick leave abuse

Excessive sick leave absenteeism creates numerous problems for employers and fellow employees and also evokes emotional responses – employers believing the sick leave is consistently abused, whereas employees believe that they have a right to utilise their full sick leave entitlement. 

Employees have a common law duty to render services during their contracted working hours. 

The exception to this duty is when the employee can show that he/she has a valid reason to be absent. 

The onus is on the employee to prove this. 

Illness is however a fact of life and employees will get ill. 

In practice, most employers would therefore simply accept sick notes on face value; or if a sick note does not comply with the legal requirements for granting paid sick leave, simply make it unpaid leave. If the employee takes frequent sick leave (even if they produce a sick certificate every time) and the employer does not challenge or investigate this, it could be argued that the employer has accepted the reason for the absence on each occasion as valid – and therefore that it cannot be misconduct or abuse.

If the employee however lies about the reason and claims to be ill when this is not the case, this will be a breach of contract (misconduct) that can justify the implementation of disciplinary action, and possible dismissal. 

Sick notes are not sacrosanct and are essentially hearsay evidence. 

They can be investigated and either be verified or found to be false.

The employee may for example be seen at a party or sporting event while claiming to be ill, which requires an explanation. 

The doctor who supposedly issued the sick note, may not actually exist. If the employer’s investigation produces evidence of likely misconduct, a disciplinary process is prudent – either on the basis of unauthorised absence or for misrepresentation of information to the employer.

Sick absences (paid or unpaid) that have previously gone unchallenged, cannot become misconduct later on simply because a pattern of frequent sick absences emerges over time. 

The employer needs more than just a pattern – there will have to be surrounding circumstances to contribute to the likelihood of deception in relation to this pattern, before misconduct may be indicated. The employer needs to present a prima facie case that the employee probably lied about being sick on some of all of the absences and therefore abused his/her sick leave, before the burden passes to the employee to rebut this inference.

If however such investigations have not been done; or sufficient proof of probable misconduct and fault on the part of the employee is not available, the employer cannot address the frequency of sick absences by way of a disciplinary charge for sick leave abuse. This does not mean that the employer has no recourse to address frequent sick absences and the resultant loss of productivity. 

An incapacity process relating to ill health can be initiated with such employees, with a view to determine if they have the health capacity to consistently deliver on their contractual obligations. 

This would require the employee to cooperate with a medical investigation, following the principles in Schedule 8 (items 10 and 11).

This scenario was considered by the Labour Court in General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (2018) 39 ILJ 1316 (LC) (30 January 2018). The court made the following observations:

·   “The need to maintain satisfactory levels of attendance was clearly a capacity that an employee was required to demonstrate to remain employed. The fact remains that in each instance, the source of the alleged incapacity or inability to comply with attendance requirements was ill- health.”

· Reference was made by the court to AECI Explosives Ltd (Zomerveld) v Mambalu [1995] 9 BLLR 1 (LAC) and the Labour Appeal Court’s acceptance that persistent absence from work because of genuine ill-health is a legitimate ground on which to terminate employment, and one that relates to the capacity and not the conduct of the employee. “It seems to us that the company, having accepted the authenticity of the medical certificates, was entitled to rely only on incapacity. It was entitled to dismiss the applicant… For his incapacity to perform his job with such incapacity [was] due to persistent absence from work because of genuine ill-health.”

• The court also referred to Hendricks v Mercantile General Reinsurance Company (1992) 15ILJ 34 (LAC) as authority for the proposition that substantive fairness in such circumstances requires an assessment of whether the employer can fairly be expected to continue the employment relationship given the nature of the incapacity, its cause, the prospect of recovery, improvement or recurrence, the period of absence and its effect on the employer’s operations and on other employees, and the employee’s work record and length of service.

In practice therefore, the following could apply where there are frequent sick absences and an incapacity process is utilised:

· The frequently absent employee is genuinely suffering from ill health and could potentially be dismissed for incapacity;

· The medical investigation shows that the employee has no real health problems, in which case the employer will know to scrutinise and investigate each sick absence in future, to determine if the employee was really sick or should be charged with misconduct;

The employee will in any event realise at this point that his/her job may be on the line either way, if the frequent sick absences continue.

A tip from employers who have been able to manage their absenteeism better than most, is to introduce a policy that any employee who has been absent for health reasons, may not start their duties upon their return to work, before they have sat down with their manager for a ‘welcome back’ interview – regardless of the duration of the absence or whether they submit a sick note or not. 

During this interview, the manager can confirm that the employee is well enough to resume work; take note of any medication that may affect their performance; and scrutinise any sick note properly in the presence of the employee. 

Even if the nature of the ‘medical condition’ is not disclosed, the authenticity of the sick note and the veracity of its contents could be investigated.