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Ill health in the workplace can be challenging to manage, given the variety of scenarios under this single heading that HR practitioners deal with.

One of the difficulties for employers is that ill-health incapacity does not always look the same. Some cases are relatively straightforward, such as where clear medical evidence confirms that an employee will never be able to return to work. In other cases, while an employee may genuinely be ill, that does not necessarily mean that an employer must continue with the employment relationship indefinitely. At the same time, the fact that an employee has taken a lot of sick leave does not automatically justify dismissal.

Three scenarios in particular tend to leave employers uncertain about how to proceed. Each calls for a different approach, and the alternatives worth considering before dismissal will depend on the circumstances.

The Employee Can Come to Work but Cannot Perform the Job

This is probably the scenario that most employers associate with ill-health incapacity. The employee has an underlying medical condition and is able to attend work, but the condition prevents the employee from performing some or all of the duties that they were employed to perform.

In these circumstances, the employer normally needs detailed medical information before making any decisions regarding the way forward. It is important to understand what the employee can and cannot do, whether the condition is temporary or permanent, the expected recovery period, and whether the employee can be reasonably accommodated.

If the condition is temporary, short-term solutions should be considered. Depending on the circumstances, these may include:

• Placing the employee on light or adapted duties;
• Changing certain duties or working arrangements for a period; or
• Appointing a fixed-term employee to cover the role until the employee is able to return to their normal duties.

If the condition is permanent, dismissal may be easier to justify, but is still not automatic. The employer should consider whether there are suitable alternative positions available or whether the employee’s duties or working circumstances can reasonably be adapted on a permanent basis.

Only where the employee cannot perform the job and reasonable accommodation or alternatives are not possible should dismissal be considered.

The Employee Is Continuously Absent and There Is No Clear Return Date

In this scenario, the employee may have an underlying condition that is regarded as temporary, but remains booked off for a prolonged period without a clear indication of when they will be able to return.

The issue is therefore not necessarily whether a doctor has declared the employee permanently unfit for work, but rather the length of the absence and the uncertainty surrounding the employee’s return.

This distinction was illustrated in Parexel International (Pty) Ltd v Chakane NO and Others [2019] ZALAC where the employee had been absent for approximately nine months and could not indicate when she would be able to return. The Labour Appeal Court held that the employer was not required to keep her position open indefinitely in those circumstances, and the dismissal was ultimately found to be fair.

There is no magic time frame after which dismissal automatically becomes fair though. The employer should still properly consider alternatives. For example, could someone step in while the employee recovers, and can the business reasonably continue with that arrangement? The actual effect of the absence on operations will also be relevant.

One of the common mistakes that employers make is acting too quickly. Temporary incapacity should call for consideration of short-term solutions before permanent termination of employment.

Frequent or Habitual Sick Leave

The third scenario involves an employee who is frequently absent for different periods of illness but does not have a single underlying medical condition. Over time, the absences begin to affect the employee’s reliability and the employer’s operations. This is often referred to as habitual absenteeism.

Importantly, habitual sick leave does not mean that the employee is pretending to be sick. The illnesses may be completely genuine.

In AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC), the employer accepted the employee’s medical certificates as genuine. The issue therefore had to be dealt with as incapacity rather than misconduct. The Labour Appeal Court recognised that factors such as the extent of the absence, its impact on operations and other employees, the cause of the incapacity, and the likelihood of recurrence should be considered.

An employer also does not necessarily have to wait until all sick leave has been exhausted before addressing habitual absence. If the level of sick leave is already affecting operations, an incapacity process can be started.

The employee should generally be made aware that the amount of sick leave has become problematic and that, if the pattern continues, it could ultimately place their employment at risk. Care must be taken not to treat this as a final warning for misconduct though. If the employee becomes ill again shortly afterwards, that also does not automatically justify dismissal because people do get sick. One, two, or even three days of genuine sick leave after an ultimatum will not necessarily justify dismissal. It is the continued pattern and its impact on the business that matters.

Employers should look at the bigger picture. Did the same pattern of excessive and unpredictable absence continue? Did the employee’s attendance improve significantly before another illness occurred? Was the latest absence caused by something completely different, such as an accident?

Ultimately, dismissal should only be considered where the situation has become an undue hardship for the employer. In simple terms, this means more than the absence merely being inconvenient or difficult. Its nature, extent, and effect must have reached a point where the employer can no longer reasonably be expected to continue with the situation.

When does sick leave become misconduct?

There is an important difference between excessive but genuine sick leave and abuse of sick leave. If the employee is ill but the frequency or length of the absence has become unsustainable, the issue is normally incapacity. If the employee is not ill and uses sick leave for another purpose, the issue may be misconduct.

Abuse of sick leave is serious and will often involve dishonesty, but just like any other allegation of misconduct, the employer must prove it on a balance of probabilities. A suspicious pattern can be evidence, but is not automatically proof.

For example, if 80% of an employee’s sick leave appears to fall on Mondays or Fridays with no apparent explanation, the employer is entitled to question the pattern. The employee should, however, be given an opportunity to explain it and, where appropriate, relevant medical information can be obtained.

If there is no plausible explanation, the pattern may form part of the evidence supporting an allegation of abuse. Importantly though, an employer cannot simply decide months later that previously accepted periods of sick leave must have been dishonest purely because a pattern has emerged.

A Single Incident May Be Decisive

If an employee requested annual leave for a particular day, the request was declined, and the employee then happened to report sick on exactly that day, this may reasonably raise questions. The circumstances should be investigated and the employee given an opportunity to explain.

There are also clearer examples.

In Woolworths (Pty) Ltd v CCMA and Others [2021] ZALAC, an employee reported that he was too ill to work but travelled approximately an hour to attend a rugby match whilst on paid sick leave. The Labour Appeal Court found that his conduct was dishonest and that the dismissal was fair.

Similarly, in South African Revenue Service v CCMA and Others [2023] ZALCJHB, an employee reported that he was unwell but participated in a protest on the days concerned. His later medical certificate covered a different period. The Labour Court ultimately found his dismissal substantively fair.

The lesson from these cases is not that an employee on sick leave must stay at home or remain in bed. The question is whether the evidence shows that the employee dishonestly claimed to be too ill to work in order to obtain sick leave for another purpose.

A Little Humanity Goes a Long Way

Ill-health incapacity should never simply become an exercise in finding a legal reason to dismiss someone. Before dismissal is considered, employers should be satisfied that every reasonable alternative has been explored.

Where an employee is recovering from a physical or mental health condition, covering the role for a period or adjusting their duties can make a meaningful difference. Even where sick leave abuse is suspected, a fair and open process that gives the employee a proper opportunity to explain will stand the employer in good stead.

Written by Ané Anderson