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By Raine StClaire

Despite its intended purpose of providing financial support to employees during illnesses, South African businesses are currently grappling with a significant challenge in the form of sick-leave fraud.

The misuse of sick leave for personal reasons has become widespread across industries. Occupational Care South Africa (OCSA) suggests that approximately 40% of sick leave claims are not genuine, resulting in businesses losing up to 17% of their annual payroll.

A recent report from OCSA highlights that absenteeism costs the South African economy between R12 billion and R16 billion annually, with 15% to 30% of employees being absent on any given day.

The Basic Conditions of Employment Act allows employees 30 days of sick leave over a three-year cycle, equivalent to six weeks of paid sick leave spread across 36 months.

New employees can request one day of paid sick leave for every 26 days worked. Within this framework, employers have the authority to request a medical certificate under specific circumstances, such as when an employee misses two consecutive workdays or frequently takes sick leave.

This jurisdiction also extends to situations where employees claim illness on a Monday or a Friday. Regrettably, this practice has given rise to a concerning trend where some individuals exploit sick leave by falsely alleging illness when their actual intention is to take a personal day off.

According to labour analyst Tony Healy, there is an “extraordinary amount of sick leave fraud in South Africa, and employers would be amazed at the level this type of fraud has reached. It has gotten to the point where it has become a business to some people”. He highlights instances, where administrative and reception staff in doctor’s offices stole blank doctor’s pads and scripts to sell fraudulent sick notes from their homes as a side hustle.

This type of dishonesty is not unusual, as Tony estimates that nearly 50% of medical certificates submitted to employers contain fraudulent information, amounting to theft and fraud. Such actions can potentially result in employee dismissal and legal consequences and should serve as a stark warning to employees to maintain integrity when handling sick leave-related issues

What does the law say?

Sick leave alone does not typically warrant employee dismissal. Employees must provide a sick note after 2 consecutive days of illness. Failure to do so may lead to the absence being considered unauthorised, which can result in disciplinary action.

This article first appeared in the October edition of Public Sector Leaders, read it and more here: 

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Dismissal on short-term sick leave

Disciplinary actions, including termination, can be considered due to short-term sickness absence that include instances of unauthorised absence or malingering.

• Unauthorised absence employees should submit a sick note within 2 consecutive days of illness or as specified in the company’s policies. Failure to do so may result in the absence being marked as unauthorised, potentially leading to disciplinary action.
• Malingering, fabricating or exaggerating illness, often referred to as “pulling a ‘sickie,’” constitutes fraudulent behaviour that breaches trust and confidence. Suspected malingering can lead to disciplinary action, including dismissal.

The art of deception

Malingering, defined as the deliberate act of feigning or exaggerating symptoms to deceive others, is often employed to evade responsibilities. It typically involves pretending to be ill or injured when one is not genuinely experiencing the claimed symptoms.

An illustrative case involves a SARS employee who requested sick leave for two days, citing illness. However, during those exact days, the same employee was observed actively participating in a protest organised by the Economic Freedom Fighters (EFF) against Clicks. Subsequently, the employee received a disciplinary notice and was ultimately dismissed after being found guilty of dishonesty. The grounds for dismissal were the intentional misrepresentation of being unwell while engaging in the protest, which was viewed as a breach of trust and contractual obligations to the employer.

However, the employee contested the dismissal alleging unfair dismissal by bringing the matter before the CCMA who deemed the dismissal substantively unfair and ruled in favour of the employee.

The employer, unsatisfied with the CCMA’s ruling, submitted a review application to the Labour Court. In its assessment, the Labour Court considered the employee’s participation in a protest while claiming to be ill, which strongly suggested insincerity in his sick leave claim. The Labour Court therefore overturned the CCMA’s ruling, affirming SARS’s right to terminate the employee’s contract based on a lack of sincerity in his illness claim. The court’s decision was grounded in the assertion that the employee had intentionally feigned illness to participate in the protest as he was aware that his actions were inconsistent with a legitimate sick leave request.

Dismissal on long-term sick leave

For employees on long-term sick leave or those with recurring health issues, dismissal may be considered. However, it should be treated as a capability issue rather than misconduct, and dismissal should be a last resort.

• Capability

Dismissal for capability may be fair if the employee’s health condition makes it impossible for them to perform their job or if their repeated absence harms the business.

• Reasonable adjustments If the employee’s condition qualifies as a disability, the employer must make reasonable adjustments, such as phased returns, altered duties, or workplace adaptations, unless it’s not practical or effective.

Dismissal rules for sick leave

Even in cases of misconduct or incapability, employers must act reasonably and follow fair procedures.

• Disciplinary procedures:

A fair disciplinary procedure includes investigating misconduct allegations, informing the employee in writing, inviting them to a disciplinary hearing, allowing them to be accompanied, conducting a timely hearing, providing a written decision, and offering the right to appeal.

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