⚖ The Advocate
Workplace & Labour Rights

You Were Absent — You Are Dismissed

An employer dismisses an employee for being absent while on certified sick leave

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The Situation

What They Said

“You have been absent too many times. We cannot keep someone who is not here — you are dismissed.”
An employer dismisses an employee for absences that were covered by a valid medical certificate or that occurred during a period of sick leave to which the employee was legally entitled. The employer does not distinguish between lawful sick leave absences and unauthorised absences.
The Fallacy

Conflating Authorised Absence with Misconduct

The employer treats all absences as equivalent and punishable, without distinguishing between lawful sick leave (a statutory right) and unauthorised absence (a potential disciplinary matter). Dismissing an employee for exercising a statutory right — sick leave — is not disciplinary action for misconduct. It is an attack on the right itself. South African law provides specific protections against this: dismissal during or because of sick leave may be automatically unfair under the LRA.

What the Law Says

Your Legal Foundation

Basic Conditions of Employment Act 75 of 1997
Section 22 — Sick Leave
“During every sick leave cycle of 36 months an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. An employer may require an employee to produce a medical certificate if the employee has been absent from work for more than two consecutive days.”
You are entitled to 30 days of paid sick leave in every 36-month cycle (based on a 5-day week). Absent on certified sick leave, you are exercising a statutory right — not committing an offence. An employer may request a medical certificate for absences of more than two consecutive days, but cannot penalise you for taking authorised sick leave.
Labour Relations Act 66 of 1995
Schedule 8 — Code of Good Practice: Dismissal — Incapacity — ill health or injury
“When an employee is unable to work due to ill health or injury, an employer is required to investigate the extent to which the employee is able to perform the work, the extent to which the employee's work circumstances might be adapted to accommodate disability or illness, and the availability of any suitable alternative work.”
Dismissal for poor health or absence due to illness is a matter of incapacity — not misconduct. Before dismissing for incapacity, the employer must investigate and consider accommodation, alternative roles, and the employee's prognosis. Dismissing immediately without this process is procedurally unfair. Dismissing because the employee is on sick leave is substantively unfair.
What Scripture Says

God's Word on This

Matthew 25:36 (NET)
“I was sick and you visited me, I was in prison and you came to me.”
Scripture treats care for the sick as a moral obligation — not a weakness to be penalised. An employer who dismisses a sick employee rather than showing basic human consideration is acting in direct opposition to what Scripture models as righteous conduct toward the vulnerable. The law, by requiring investigation before dismissal for incapacity, encodes the same principle: the sick person is not simply a liability to be removed.
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What They'll Say Next

Common Counter-Arguments

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They might say: “The medical certificates were fraudulent — we do not accept them.”
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