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A guide to paid sick leave in South Africa

There are quite a few types of leave in South Africa: Annual leave, sick leave, family responsibility leave (sometimes referred to compassionate leave), maternity leave, parental leave, adoption leave, commissioning parental leave and more. Of the types of leave the one I get the most questions about is – sick leave.

Therefore, my goal with today’s post is to cover all the important information about sick leave. This post is likely to be useful for employers, managers, superiors, employee representatives / shop stewards / trade union representatives, payroll consultations, bookkeepers and employees.

Disclaimer: This post only relates to sick leave as it is detailed in the Basic Conditions of Employment Act (“the Act”). If your business falls under a sectoral determination or bargaining council main agreement (especially those with sick leave funds), please supplement the information provided in this blog with the information contained in your sectoral determination or bargaining council main agreement.

Let’s get into how sick leave works in South Africa.

How many days paid sick leave does an employee get in the first 6 months of employment?

They get 1 day for every 26 days worked.

Note: while annual leave can be changed (by agreement) to 1 hour for every 17 hours worked, the Act does not have a provision that allows sick leave to be changed to 1 hour for every 26 hours worked and therefore I would recommend leaving it as 1 day for every 26 days worked.

How many days paid sick leave does an employee get (after completing their first 6 months of employment)?

An employee gets the number of days they would ordinarily work in a 6-week period for every sick leave cycle.

Therefore, an employee who works 5 days a week is entitled to 30 paid sick leave days per sick leave cycle.

An employee who works 6 days a week is entitled to 36 paid sick leave days per sick leave cycle.

Note: Any paid sick leave taken during the first 6 months of employment is deducted from the total sick leave entitlement for the sick leave cycle. The first 6 months of employment is included in the first sick leave cycle in terms of calculating the time frame.

How long is a sick leave cycle?

36 months (3 years).

How to I calculate paid sick leave for an employee whose working days vary?

You take the average of the preceding 13 weeks.

If the employee has not worked for 13 weeks, then you use 1 day for every 26 days worked.

How much do I pay an employee for sick leave?

You pay them their ordinary daily wage for each sick leave day taken.

If they pay varies take the average of the preceding 13 weeks or if they have worked less than 13 weeks, take the average they have earned in the time they have been working.

How do I calculate a daily wage for employees who earn monthly salaries?

Take the monthly salary divided by 4.33. This will give you their weekly remuneration. Divide that by the number of days they ordinary work in a week to get the daily wage.

Example: An employee earns R20 000 per month. Their weekly remuneration is R20 000 / 4.33 = R4 618.94. If they work five days a week, their daily remuneration is R4 618.94 / 5 = R923.79.

Can I pay an employee less than their ordinary daily wage for sick leave?

Yes, but only by agreement.

How this works:

An employer and an employee can agree to reduce the pay for sick leave, but then the number of sick leave days needs to increase with the same proportion.

The payment cannot be less than 75% of the employee’s ordinary remuneration.

Found in Section 22(6) of the Basic Conditions.

This can only be implemented by agreement. If you would like to use my sick leave agreement template, you can find that HERE for a small fee.

Note: The template prices are in dollars, because this allows them to be available immediately and automatically after payment has been received. You are still able to make the purchase with your South African bank card. Once payment has been made your document will be available for download by clicking on the light blue writing or going to the Purchase History Page.

When must an employee produce a medical certificate to be entitled to paid sick leave?

If their absence from work extends two consecutive days (3 days or more) or if they are absent on more than 2 occasions in an 8-week period. I will elaborate on this by answering more questions.

Quick pause to let you know I made a video on paid sick leave that extensively covers the requirements for medical certificates and my recommendations if you would like to watch that. It helps me to continue to make videos and provide free information if you watch my videos, subscribe to my channel and like or comment on my videos.

What happens if I (the employer) want an employee to bring a sick note for every day they are absent?

You may have a rule or policy in your company that states that you require a medical certificate to be produced for each day the employee is absent due to illness or injury, however:

The employee must know before that you expect this of them.

The employee is still entitled to be paid for that day even if they do not produce a medical certificate if their absence does not extend 2 consecutive days or is not more than 2 times in an 8-week period.

If they fail to produce a medical certificate and you have a clear policy on what is expected of them, you may issue them with a warning for unauthorised absence (after allowing them a fair opportunity to state their case) or any other appropriate disciplinary/corrective action.

I recommend weighing up the business requirements before implementing this policy, because there are times when individuals need to rest to recover and they may not necessarily be so ill that they would ordinary go to a doctor.

If I don’t require a medical certificate every day, how do I stop employees from abusing their sick leave?

An employee is required to produce a medical certificate if they are absent on more than 2 occasions in an 8 week period. Therefore, if they are regularly absent due to illness, it is likely that it will be more than 2 times in an 8 week period.

Alternatively, if an employee is absent on a regular basis due to illness or injury to the extent that it is causing disruptions in the workplace, an employer may investigate whether the employee is fit for work (by conducting an incapacity investigation). If you would like me to explain how an incapacity investigation is done fairly let me know in the comments below.

How do I keep accurate records of leave taken?

I recommend making use of my leave form. You can find my leave form HERE for a small fee.

Do I give an employee sick leave if they were injured at work?

No, do not use sick leave for workplace injuries or diseases. Follow the workplace injury or disease procedure and payment is done in accordance with COIDA (Compensation for Occupational Injuries and Diseases Act).

Do I have to accept clinic notes as medical certificates?

It depends who signed and issued the clinic note. If it was a professional who is registered with a council (such as the Health Professions council of South Africa) and who is allowed to diagnose and treat, then yes.

If the clinic note is an attendance note, then no.

I would recommend watching my video for more information on medical certificates.

You can also use my sick leave policy template and adapt it to your business to ensure employees know what will and will not be accepted as valid proof of sick leave.

Concluding remarks

I will cover altered medical certificates and fraudulent medical certificates in another post, but for now, you can get that information in my video, and I recommend my sick leave policy template that covers what is expected of employees and what consequences they could face should they produce certificates that are not valid.

Comment down below if you have any other questions about sick leave and once I have a few questions to address I will make another post covering all the information that is not covered in this post.

Disclaimer: I cannot cover all the scenarios in this post, therefore this piece is for educational purposes only. Book a consultation with a professional if you need to.

I hope this information is helpful,

Carmen Fourie

(Director of Fourie Employment Relations & Employment Relations Practitioner)

New Earnings Threshold

Some provisions of the Basic Conditions of Employment Act, the Labour Relations Act and the Employment Equity Act are only applicable to employees who earn below the earnings threshold as set by the Minister of Labour from time to time.

The previous earnings threshold was R205 433.30 per year.

The new earnings threshold as of March 2021 is R211 596.30 per year (see calculation below).

What is included and excluded from the amount?

The amount is before any deductions such as income tax, UIF, medical aid or pension / provident fund contributions
Subsistence allowances and travel allowances are NOT included in the amount
Achievement awards or once off performance payments and bonuses are NOT included.
Payment for overtime is NOT included.

A new document has been added – Probationary Period Contract Clause

In anticipation of our upcoming video, I have loaded a new document to assist Employers – a word document containing my recommended probationary period clause. This clause contains five sections that summarize the requirements of both Employers and Employees during the probationary period. It is my belief that contracts of employment should provide clarity on what either party can expect from the other (this may aid in preventing some unnecessary labour disputes). My contract clause is written to detail what Employees can expect from Employers, but also to remind Employers what their responsibility is during this period. In addition to this, the clause refers to the extension of the probationary period. In the upcoming video I answer the question “can probation be extended and if so, how? “.

The probationary period clause document can be downloaded HERE.

I am aware that many Employers appoint Employees on fixed term contracts to evaluate their performance or “fit” and then issue them with a new contract once they have completed the initial period. In the upcoming video I address this and I will make a longer video about fixed term contracts in future, but for now my recommendation is as follows:

Recommendation: Fixed Term Contracts & Probation

I recommend that Employers issue one contract prior to commencement of service or on commencement that includes a provision that covers the initial period / probationary period rather than using two contracts. I do not recommend that Employers use fixed term contracts for probation and I am of the opinion that the use of a fixed term contract for probation does not offer any benefits to Employers nor does it exempt them from the requirements as detailed in the Labour Relations Act (and accompanying codes of good practice) to fairly terminate the employment relationship at the end of the initial period.

In the upcoming video I detail all the requirements before, during and at the end of the probationary period to assist Employers to comply with the relevant labour laws, and to assist Employees to know what to expect or to ask for if they are not being offered support in the initial period.

Employment Relations Videos

The videos are free and contain a lot of information for Employers and Employees to help them navigate the dynamic employment relationship and complex labour laws. To assist me in bringing you more content, on a regular basis, any of the following is helpful:

Subscribing to my Youtube Channel. You can find it HERE.
Liking the videos.
Commenting on the videos.
Sharing any of the content on your social media or with others that you believe may benefit from the content.
Purchasing any of the documents in my downloads shop.
Liking / following my social media pages

The more people engage with the content, the more I can continue to invest into the content.

Your support is appreciated,

Carmen Fourie

Can Employers deduct notice of termination from Employees who do not resign with sufficient notice?

Employers and Employees are required to give notice of termination as per the Basic Conditions of Employment. You can watch my video on Notice of Termination HERE. In that video I discuss what needs to happen if an Employer does not give sufficient notice of termination. In the latest video I answer the question “What happens if an Employee does not give sufficient notice”.

Employers deducting notice of termination from Employees who do not give sufficient notice is common practice and happens very often, however…

“Just because something is common practice does not mean it is good practice or that it is lawful and allowed”. – Carmen Fourie, Employment RelationsTweet

There will also often be a clause in the contract that says some version of “If an Employee does not give notice of termination as per the Basic Conditions of Employment / as per the contract of employment, the Employer has the right to deduct the amount of notice from the Employee’s final payment”. However…

“Just because something is in the contract of employment does not mean it is allowed” – Carmen Fourie, Employment RelationsTweet

Notice of termination is covered in Chapter 5 (Section 37 & 38) of the Basic Conditions of Employment Act. The content of those clauses are covered in the video on Notice of Termination and are not repeated in today’s blog / video. To answer today’s question, we turn to Chapter 4 Section 34 of the Basic Conditions of Employment – Deductions and other acts concerning remuneration.

If your preferred method of getting information is through watching and listening, you can watch the full video answering “Can Employers deduct notice of termination from Employees who do not give sufficient notice?” HERE.

Let’s unpack the requirements of Section 34 now, to answer the above question.

Section 34(1) An employer may not make any deductions from an employee’s remuneration unless –

(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or

(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

We’ll unpack subsection 2 in a moment. But essentially what the above is saying is that a deduction can only be made if there is an agreement about the specific debt (subject to Subsection 2) or the deduction is required or allowed in terms of a law, collective agreement, court order or arbitration award. Examples of deductions that are allowed or required in terms of a law, collective agreement, court order or arbitration award include union subscriptions if it is required by a collective agreement, PAYE, UIF and a garnishee order (this is not an exhaustive list). Deductions of notice of termination do not fall under those and therefore to answer our question we look to the requirements of Section 34(1)(a) and subsection 2.

Section 34 (2) A deduction in terms of subsection (1) (a) may be made to reimburse an employer for loss or damage only if –

There are four “ifs”. Meaning a deduction is only allowed if it meets the four requirements detailed below in addition to the requirement of having a written agreement in place. Often the contract clause referred to above is stated as the written agreement. But then the important question is, does the deduction of notice of termination meet the following requirements:

34(2)(a) the loss or damage occurred in the course of the employment and was due to the fault of the employee;

(b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;

(d) the total deductions from the employee’s remuneration in terms of this subsection do not exceed one-quarter of the employee’s remuneration in money.

Testing the deduction of notice against the four requirements above. I would say that it can meet the requirements of a & b, but I have my doubts about c & d. To prove that the deduction does not exceed the actual amount of loss or damage, the actual amount of loss and damage needs to be quantified and this is extremely difficult to do in most cases. The loss or damage is not purely the employee’s remuneration for the notice period. The loss or damage would be things like loss in sales, disruptions to operations, loss of client’s and other similar losses. As you can imagine these are difficult to quantify and pinpoint that it is as a result of the employee not working out their notice period. In my nearly 6 years of working in this field I have not had a situation where an Employer could accurately quantify the loss / damage. That doesn’t mean it isn’t possible, I just have not come across it. Furthermore, if it can be quantified, what is the likelihood that it will amount to the notice pay that is deducted?

The final requirement could possibly be met if the notice payment is under 25% of the total paid to the employee. But for a deduction to be fair, it needs to meet all four the requirements. In my opinion, deducting notice does not meet the requirements for a fair deduction and I therefore recommend that employers do not deduct the notice pay from employee’s final payment.

What then can an Employer do if an Employee does not work out their notice period?

An Employer can choose to take legal action. This, however, is a lengthy and costly procedure. But the possibility of it happening may be sufficient to deter employees from not giving sufficient notice. An Employer can also disclose that an Employee did not give sufficient notice, which may impact on an Employee’s employability.

I recognise that times Employees have requirements that make it difficult to work out their notice. In the video on Notice of Termination I discuss my recommendations for dealing with this.

This video discusses deducting notice pay, therefore just a reminder that notice does not need to be paid by the Employer if the Employee resigned and chose not to work out their notice. If it was the choice of the Employer, the Employer would need to pay out notice.

For weekly Employment Relations content subscribe to my Youtube Channel or follow any of the social media accounts: Facebook | Twitter | LinkedIn

If you find these posts helpful, please help us by sharing them on social media or commenting on social media.

Carmen Fourie, Employment Relations Director & Employment Relations Practitioner

Sick Leave Contract Clause

If you are looking for how to include sick leave in your contracts of employment and ensure compliance with the Basic Conditions of Employment Act – You can use our template and download it HERE.

This document contains a complete sick leave clause that details the Employee’s entitlement to sick leave during the first 6 months of employment and thereafter. This clause takes into account variations in the number of days an employee ordinarily works and details the requirements for when an employee is required to produce a medical certificate to be entitled to paid leave leave. There is an additional sub-clause clearly indicating that Employers can verify medical certificates or obtain information pertaining to the medical certificate. The document is a 1 page Word document. This clause should not be used alone and should be inserted into the contract of employment. This clause can be supplemented by the sick leave policy available for download.

Sick Leave Policy Template

You can download our Sick Leave Policy Template HERE.

This policy is used to clearly set out the requirements for a medical certificate to be accepted. It provides a list of what will be accepted and what will not be accepted, including reference to clinic notes. Furthermore, the sick leave policy includes information on dishonest conducted related to medical certificates (altered medical certificates and medical certificates issued from unregistered practitioners). This policy is a 1 page word document.

Overtime Agreement Template

Overtime can only be worked by agreement. You can download our Overtime Agreement Template HERE.

This agreement is used to implement overtime in accordance with the requirements of the Basic Conditions of Employment. It includes all provisions of Section 10 of the BCEA, as well as other important restrictions. Furthermore, this agreement includes all variations allowed for remuneration of overtime and the additional information that accompanies the use of different variations. This document is just over 2 pages and is in Word format to be easily edited. It can be used as a stand alone agreement or inserted into contract of employment.

Section 189(3) Retrenchment Letter

You can download a template for a Section 189(3) Retrenchment Letter HERE. To get the most from the template and start your retrenchment off on the right foot – watch our video on How to draft a Section 189(3) retrenchment letter on our Youtube Channel.

Who represents Employees during a Retrenchment Consultation?

When an Employer contemplates dismissing one or more Employees for reasons based on the Employer’s operational requirements (i.e. retrenchment), the Employer must consult with…..

Firstly – Any person whom the employer is required to consult with in terms of a collective agreement (this is usually in the case where an Employer belongs to a bargaining council and the bargaining council agreement regulates who should be consulted).

If the above is not applicable:

Secondly – A workplace forum, if there is a workplace forum in the organisation where the proposed dismissals are taking place (a workplace forum is formally established through the requirements detailed in the Labour Relation Act).

If the above is not applicable:

Thirdly – Any registered trade union whose members are likely to be affected by the proposed dismissals.

If the above is not applicable:

Fourth – Any representative nominated by the Employee.

PLEASE NOTE: Unlike disciplinary matters or incapacity matters, an Employee may be represented by someone outside of the organisation during a retrenchment consultation. It is not limited to a trade union representative or a fellow employee.

The above information is paraphrasing of Section 189(1) of the Labour Relations Act.

Is your Retrenchment a Section 189 or Section 189A (Large Scale Retrenchment)

It is important for both Employers and Employees to know whether their retrenchment falls under Section 189 or Section 189A. Section 189A is commonly referred to as a large scale retrenchment. This article will help you determine whether yours is a Section 189 or Section 189A.

A retrenchment is considered a Section 189A, when:

Firstly – the Employer employs more than 50 employees and

if the Employer is contemplating dismissing (for reasons related to operational requirements):

at least 10 employees if the Employer employs up to 200 employees;
at least 20 employees if the Employer employs more than 200, but not more than 300 employees;
at least 30 employees if the Employer employs more than 300, but not more than 400 employees;
at least 40 employees if the Employer employs more than 400, but nor more than 500 employees; or
at least 50 employees if the Employer employs more than 500 employees.

Another important factor – the total number of employees dismissed for operational requirements by the Employer in the 12 months prior to issuing the Section 189(3) are counted in the numbers above.

For the requirements of both a Section 189 and Section 189A see the Labour Relations Act for more details.