The Basic Conditions of Employment Act, No 75 of 1997 (“the BCEA”) gives effect to the right to fair labour practices referred to in section 23(1) of the Constitution of the Republic of South Africa by establishing and making provision for the regulation of basic conditions of employment.

The BCEA places strict duties and obligations on employers to comply with the minimum terms and standards for employees employed in the Republic of South Africa. The focus of this article will be employees’ and employers’ rights and obligations in terms of sick leave.

Many employees appear to not know their rights pertaining to sick leave and the limitations in respect of taking sick leave. Section 22 of the BCEA sets out the minimum terms and conditions for an employee who is ill and accordingly requires a day or days off work in order to recover from said illness.

The sick leave cycle

  • Sick leave works on a three-year cycle as per the BCEA.
  • In terms of section 22 of the BCEA the sick leave cycle is a period of 36 months’ continuous employment with the same employer.
  • Notwithstanding the employee’s three-year cycle entitlement to paid sick leave as mentioned above, provision is made for an employee’s first six months of employment where he or she may take one day’s paid sick leave for every 26 days worked.
  • Subsequent to the period of six months continuous employment with the same employer lapsing, the employee is then entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks for the three year cycle in the event that the employee has exhausted his or her paid sick leave during the first six months of employment.
  • Employees should further be mindful that if a pattern of regular sick leave appears and affects business operations, this may have repercussions in respect of possible disciplinary action for abuse of sick leave, if the employer can prove.
  • Employees are encouraged to communicate reasons for excessive sick leave to their employer once it becomes evident that sick leave is excessive in a short period of time.
  • Employees must note that an employer is not obliged to accept the word of an employee claiming to be sick and the employee is responsible for proving sickness by way of medical certificates.

Medical certificates for sick leave

  • In terms of section 23 of the BCEA, the employee to provide medical certificate if absent for three days or more i.e. more than two consecutive days, alternatively if they have been absent on more than two occasions during an eight week period and the employer is not obliged to remunerate the employee for those days absent.
  • Medical certificate from a traditional healer is valid aslong as the they are a registered practitioner.

Conclusion

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 accounts@eskilz.co.za or call 010 03000 80 for assistance in this regard.

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