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An employer has a sick leave policy that employees who are absent for fewer than three days are not required to provide a medical certificate. The policy also requires the employer to pay employees who are absent due to illness for fewer than three days regardless of whether a medical certificate has been provided. Does this policy prevent the employer, in terms of its disciplinary policy and procedure, from issuing warnings for misconduct to employees who are absent for fewer than three days? And, should such conduct persist, can the employer take stronger measures against the employees despite its sick leave policy?
This employer’s policy is on all fours with the provisions relating to sick leave in the BCEA – an employee only has to produce a medical certificate if they are absent from work for more than two days in order to be paid for the days on which they were ill. This has nothing to do with discipline.
An employee bears the burden of proving that they were incapable of coming to work because they were ill. The probative value of a medical certificate is the same as any other document – the employer can reject the certificate as proof that the employee was ill and the employee would have to adduce other evidence to prove that they were incapable of coming to work due to ill health. The position would be the same if the employee does not produce a medical certificate.
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