RSM South Africa

Sections 22 and 23 of the Basic Conditions of Employment Act

All employees are entitled to sick leave. However, if this is not managed carefully to identify whether employees are taking advantage, companies can suffer tremendously due to abuse thereof.

Statistically, the costs can run between 6% - 10% of payroll, which is quite significant. In order to manage the process, employees need to understand that they are not ‘entitled’ to use up all of the sick leave days by having an odd ‘duvet day’ (Jordaan, B Stop Absenteeism (2013)).

Below is some clarity on legislation and steps that employers can take in order to prevent any problems to both the employee and the company.

Section 22 and Section 23 of the Act reads as follows:

1. In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following—

(a)   an employee’s commencement of employment; or

(b)   the completion of that employee’s prior sick leave cycle

2. During every sick leave cycle, an employee is 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.

3. Despite subsection (2), during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

4. During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).

Section 23

  1. An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
  2. The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.
  3. If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.


Attendance should be closely monitored by companies and any irregular attendance should be discussed with the employee and investigated, when required.

If there is a pattern of excessive sick leave usage, HR should conduct a counselling session with the employee which is to be recorded. The employee should be informed of the prejudice being suffered by the company.

If there is no improvement, HR should advise the employee that, should he/ she not be capable of satisfactorily addressing the prejudicial pattern of absenteeism within a specified time frame, the company will be compelled to review the suitability of the employee for on-going employment thereafter on grounds of incapacity.

If an employee is off for more than two consecutive days without a valid medical certificate there is no obligation on a company to pay the employee for this. In order for the employee to avoid non-payment, the employee is required to produce a valid medical certificate.

Absenteeism is not only a problem to companies, management and fellow employees, but also costs the country and economy in terms of loss of man hours, as well as loss of productivity. Thus, the correct management and process of trying to decrease sick leave usage is of utmost importance to the fight against this problem.

Senior employees, managers and supervisors of a company should be empowered to successfully manage absenteeism within the boundaries of the law with the emphasis on correcting deviant behaviour and ultimately disciplining employees who refuse to comply with rules and regulations.

Late coming, leaving early, absence from work, etc. generally prevents employees from fulfilling their contractual duties. This is something that companies should closely monitor and need to take a serious stance on.

Sick leave is often misinterpreted by employees and used for reasons other than that which is stipulated in the Act. Some of these examples include, but are not limited to, routine check-ups and examinations, blood tests, collecting medicines from the pharmacy or vising therapists/ specialists. Sick leave should thus solely be used when the individual is medically unfit to perform their normal duties on account of sickness or injury.

Andrea Timothy

Human Resources Manager, Cape Town

Also read: Maternity leave and pregnancy - laws that protect an employee