Legal Matters: Sick Notes

The Risks of ‘Pulling a Sickie’ and Malingering: Think Twice!

By Raine St.Claire

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.

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.

• Sick note requirement:

If an employee fails to provide a sick note they should be asked to do so in writing, with a warning about potential disciplinary action and withholding sick pay for non-compliance.

Intervention And The Path To A Healthier Workforce

Conversely, issues such as office politics, bullying, mismanagement, micromanagement and work-life balance, are all contributing factors to high absenteeism. Deloitte’s research found that 76% of people believe their companies should do more to protect the mental health of their workforce. To combat this, companies should take proactive measures to reduce the abuse of sick leave by implementing a range of incentives. These incentives should encourage not only the responsible use of sick days but also create a positive work environment.

Measures such as introducing financial well-being support, flexible working arrangements, recognition tools, employee feedback surveys, access to counselling, and workplace well-being training for staff and line managers can all support the mental health of your employees. These measures can help prevent work-related stress, burnout, and depression from contributing to the endemic absenteeism problem.

The Vitality Health at Work study reported that 75% of organisations noted that early interventions and initiatives to support well-being had a positive impact on their employees’ health. Deloitte also found that investing in preemptive well-being interventions achieved higher returns than interventions brought in later when individuals were already struggling.

Sick Leave Misuse and The Game-Changing Influence of Hybrid Work

Numerous studies have consistently highlighted the positive impact of flexible and remote work options on various aspects of the workplace. One effective approach to achieving this balance is by implementing hybrid work arrangements or compressed workweeks. These arrangements allow employees to better manage their work-life balance, supporting their health and family responsibilities without fear of judgement or negative repercussions.

These options not only reduce absenteeism but also contribute to improved employee performance, productivity, and overall job satisfaction.

Regular Health Check-Ins

Conduct regular health check-ins to identify and support employees facing chronic health issues, offering resources and guidance to better manage their health and reduce sick leave.

Transparent Sick Leave Policies

Ensure that sick leave policies are transparent and consistently enforced. Encourage open communication between managers and employees to address concerns or issues related to sick leave.

Employee Assistance Programmes (EAPS)

EAPs that provide confidential counselling and support for personal or work-related issues, including health concerns can be a valuable resource for employees facing challenges that might lead to excessive sick leave.

Continuous Monitoring

Regularly assess the impact of the implemented incentives and intervention strategies to gauge their effectiveness. Adjust these measures as needed based on feedback and evolving workforce needs.

Data-Driven Insights

Utilise data analytics to identify trends and patterns in sick leave usage, providing valuable insights into areas that may require further attention or improvement.

Employee Feedback

Actively seek feedback from employees on the effectiveness of the initiatives and their overall satisfaction with the work environment. Make adjustments based on employee input to ensure a positive workplace culture. By combining these proactive measures, incentives, and intervention strategies, companies can reduce sick leave abuse, promote a healthier workplace, and enhance both employee well-being and productivity.