From time to time, shortly after an employee returns from their annual leave, they furnish their employer with a medical certificate stating that they spent a period of their leave being sick. The question is, how does an employer deal with this situation going forward?

Section 22(1) to 22(4) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) stipulates that during each 36-month cycle starting from the first day at work, an employee is entitled to paid sick leave. The sick leave is equivalent to the exact number of days the employee usually works in a typical 6-week period. For example, if the employee works five (5) days per week, he will be entitled to thirty (30) days of sick leave (paid) for the 36-month cycle.

Most employers then ask what happens to an employee’s annual leave if they become sick whilst on annual leave? Do I need to convert their annual leave to sick leave? The answer to this question is not as straightforward as one may think. This still seems to be a controversial topic in the labour sphere.

Several labour experts have the following opinion, which seems to be the most appropriate approach, in that an employee is entitled to convert their annual leave to sick leave if they fall ill while on annual leave, but the employee should immediately, upon their return, provide their employer with a medical certificate and request that that “sick period” of their annual leave, be converted to sick leave and that their annual leave be credited with same.

The following support this opinion:
Section 20(5)(a) of the BCEA states that an Employer may not require or permit an employee to take annual leave during any other period of leave to which the employee is entitled in terms of this Chapter 3 of the BCEA, which includes sick leave.

Therefore, the prevailing opinion is that if you fall ill while on annual leave, that leave may be converted from annual leave to sick leave. One will only be able to convert the days that a medical certificate can be provided for and only if the employee has sick leave available.

There are arguments for both sides; however, it seems that the majority, including CCMA Commissioners, are in agreement with the above and that it would be reasonable and fair to allow employees to convert annual leave to sick leave with the necessary proof of sickness. However, it is advisable that employers, in an effort to avoid uncertainty, address the issue in their policies.

Article by: Ashlin Saunderson
Dispute Resolution Official – CEO Kimberley