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By Dr Nombulelo Queen Mabeka

In March 2020, when the first case of COVID-19 was confirmed by government, many thought it was just a dream, however, this became a reality. The different variants caused tremendous changes in employment law because some employees were affected by these variants and had to quarantine after being infected. Some used all their sick leave because of the various variants during the pandemic. Employers were accommodating after the restriction of level 5 was lifted in that they allowed employees to work from home. Some employers continue to allow remote working to safeguard the employees from the risk of being infected on their premises. The reality is that the pandemic is still with us, and no one knows when it will end, if it will end at all.

With that said, the impact of the pandemic has dire consequences for employees because the sick leave cycle that is provided in s 22 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA) is not enough. This stipulation provides that employees be entitled to one-day sick leave after 26 days. There is no doubt in my mind that when the legislature drafted this provision it intended to preserve employment. A lot has changed since the provision was drafted and the pandemic itself is a classic example of the reason for a call to modify s 22 of the BCEA to preserve jobs. Some employees were dismissed based on incapacity that was caused by the pandemic. Authors, such as Ndlovu and Tshoose argue that there are times when employees take unpaid sick leave because their sick leave cycle is exhausted (Lonias Ndlovu and Clarence Itumeleng Tshoose ‘COVID-19 and employment law in South Africa: Comparative perspectives on selected themes’ (2021) 33 SA Merc LJ 25). The impact of this on employees has dire financial consequences. Some employees have children and financial obligations to honour. Taking unpaid sick leave puts these employees in serious debt situations and some take longer to financially recover. Some have lost their houses because they cannot afford to pay their bonds, or they go through a debt review process because of taking unpaid sick leave due to mutating variants. These two authors affirm that the pandemic affects the employment relationship. They further assert some employers are more sympathetic towards their employees because they permit them to take special leave when they become infected by COVID-19.

Caitz supports Ndlovu and Tshoose’s averments that employees take unpaid sick when they suffer from mental diseases because they must be hospitalised for a long time (Karin Calitz ‘Burnout in the Workplace’ (2022) 43 Obiter 132). This author further indicates that excessive use of sick leave hinders on the employment relationship. Academic employers have employees that have scarce skills. It takes a long time to develop an employee from a lecturer to a full professor.

The pandemic, unfortunately, does not choose who should or should not be infected. Academics also become infected and ought to take sick leave to quarantine and this affects their sick leave cycle. The academic employers cannot afford to lose these employees because they have scarce skills. Many employers resorted to remote working to accommodate infected employees and to mitigate the risk of infection.

However, it is evident that not all employers can allow employees to take special leave due to the nature of their business. The retail industry cannot afford to allow employees to take special leave. The type of industry requires employees to be hands-on and be physically at work so that the business can fully operate (OECD ‘COVID-19 and the retail sector: impact and policy responses’ (www.oecd.org, accessed 11-8-2022). Granting special leave to employees in retail industry results in financial loss to the respective companies. In the case of Jayaprakas a/l Ramadass v Anytime Sdn Bhd (Award 24 of 2022), it was confirmed that a retrenchment of a retail employee during the pandemic was justified (Donovan & Ho ‘Case spotlight: Redundancy of retail employee due to COVID-19 upheld’ (https://dnh.com.my, accessed 5-9-2022)). Dr Opute, Prof Iwu and Dr Adeola et al confirm that the pandemic ‘paralysed the global economy’ and this led to 40 000 job losses in South Africa (Dr AP Opute, Prof CG Iwu, Dr O Adeola, Dr VV Mugobo, Dr OE Okeke-Uzodike, O Fagbola and Prof O Jaiyeoba ‘The COVID-19-pandemic and implications for businesses: Innovative retail marketing viewpoint’ (2020) 16 The Retail and Marketing Review 85).

The Labour Court (LC) has shown that as much as it is sympathetic towards employees, employers are entitled to dismiss employees when sick leave is exhausted after all processes of incapacity are followed. The relevant case that illustrates the approach that courts follow is that of General Motors SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2018) 39 ILJ 1316 (LC). Briefly, in this case, two employees were dismissed based on capacity after excessive use of sick leave. The employer in question has a policy that entitles employees to take 30 days’ sick leave. The employees were counselled before the dismissal. These employees referred their matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). They could not reach an agreement in conciliation; the matter had to be arbitrated. The arbitrator concluded that the employees were unfairly dismissed because the employer only relied on the contractual duties as opposed to addressing incapacity in terms of the legislation. As a result, the arbitrator decided that the employees should be reinstated. The employer was not happy about this decision. It referred the matter to the LC for review. The LC considered the provisions of s 22 of the BCEA and held that employer’s decision to dismiss the employees was correct. In coming to its conclusion, the LC referred to the decision of the Labour Appeal Court (LAC) in the case of AECI Explosives Ltd (Zomerveld) v Mambalu [1995] 9 BLLR 1 (LAC), which confirmed that continuous ‘absence from work’ warrants a dismissal after considering certain factors such as ‘recurrence’.

It is significant to make a distinction between the approach followed by the arbitrators and the LC and the LAC. It is observed that the CCMA arbitrators are more sympathetic towards employees when it comes to dismissal cases based on incapacity caused by excessive use of sick leave. The arbitrators tend to be flexible and more sympathetic towards employees when it comes to dismissals after excessive use of sick leave.

This is illustrated in cases such as Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BCA), where the arbitrator concluded that employers must first comply with provision of the Labour Relations Act 66 of 1995 before resorting to dismissal.

Further, the arbitrators are harsh on employers who do not follow due process before dismissing employees for excessive use of sick leave. The relevant case that shows this is that of Mofokeng.

In Bosal Afrika (Pty) Ltd v NUMSA obo Itumeleng Mawelela (LC) (unreported case no JR 839/2011, 8-2-2018) (Mahosi AJ), an application was brought before the court to review a decision made by the arbitrator to reinstate the employee who was dismissed by the employer. The employee has a history of ‘absenteeism’. This employee had a chronic illness that caused the use of excessive sick leave. The LC referred the matter back to the CCMA after considering the evidence presented. This court was of the view that the arbitrator did not properly think the decision through.

In another matter in Beck/Parmalat SA (Pty) Ltd [2021] 2 BALR 131 (CCMA), an employee who had applied for unpaid leave was dismissed at the time South Africa was under level five restrictions. The employee worked in the laboratory, and she did not go to work because she feared she would be infected if she did. She did this to shield her family from the infection. The employer refused to grant her the leave and when she did not come to work, the employer dismissed her for ‘absence without leave’. The arbitrator considered the fact the pandemic was viewed as a disaster, which affected many employees and concluded that the employer was too harsh. Thus, the arbitrator re-instated the employee.

An analysis of case law indicates that arbitrators have different approaches than the courts. The case law also shows that it is reality that employers do dismiss employees for incapacity when sick leave is exhausted. Given the fact that the pandemic is a disaster that constantly mutates and presents itself in various variants, regardless of the fact that employees are vaccinated, it is time to review the provisions of s 22 of the BCEA. This is said because there is no indication from scientists that there will be an end to the existence of the virus and its variants. Instead of dismissing employees on the grounds of incapacity due to excessive use of sick leave caused by pandemic infections, the legislature should consider increasing the amount of sick leave to at least 72 days over a three-year cycle. This will ensure that jobs are preserved, and the scarce skilled employees are retained and protected from dismissals, and this will preclude employees financial strain caused by taking unpaid sick leave. The high employment rate further calls for a review of s 22 of the BCEA.

When employees are dismissed due to excessive sick leave taken due to COVID-19, they fall within unemployment statistics. It is argued that the pandemic is a disease that is not caused by negligence of employees. Therefore, they do not deserve to be dismissed after exhausting their sick leave, particularly in the health industry where employees contract the virus from the patients that they treat. These employees deserve to continue to work because the nature of their jobs poses a risk to them.

This risk should be mitigated by increasing the numbers of days that employees are entitled to in terms of the stipulations of s 22 of the BCEA. There is evidence that proves that the pandemic resulted in loss of lives of many health employees who put their own lives at risk by looking after patients who were infected.

The World Health Organisation (WHO) affirmed that there are doctors and other health employees who died due to the pandemic (World Health Organisation ‘Health and Care Worker Deaths during COVID-19’ (www.who.int, accessed 11-8-2022)). The WHO provides statistics of 80 000 and 180 000 health employees who lost their lives between January 2020 to May 2021due to the pandemic. The WHO also support the author’s averment that these health employees deserve to be shielded. Therefore, the government cannot just turn a blind eye on the reality that the number of sick days that are provided in s 22 of the BCEA are no longer enough to suit the needs of employment law. There is no doubt that the excessive sick leave affects the relationship between the employer and the employee, but I submitted that the pandemic is the cause of the damage in the relationship and this is not a fault of the employees. Some of these employees contract the virus from their employers’ premises, regardless of the fact that they have been vaccinated.

There is evidence that proves that the most common variant that affects the health employees is SARS-CoV-2 (MF Chersich, G Gray, L Fairlie, Q Eichbaum, S Mayhew, B Allwood, R English, F Scorgie, S Luchters, G Simpson, MM Haghighi, MD Pham and H Rees ‘COVID-19 in Africa: Care and protection for frontline healthcare workers’ (https://globalizationandhealth.biomedcentral.com, accessed 11-8-2022)). This is due to the fact that health employees are the first people to deal with infected patients and the nature of their jobs requires them to do so. The question that I ask is, why must they be dismissed because they exhausted their sick leave and special leave granted by health employers over and above the days, they are entitled to in accordance with s 22 of the BCEA? These health employees should not be prejudiced in any way because of the nature of their jobs. Evidently, the time has come to amend the stipulations of s 22 of the BCEA to accommodate both employers and employees. Employers will benefit from the amendment because their scarce skilled employees will be retained but they should be entitled to refer their employees to other medical practitioners where there is a history of abuse of sick leave. In conclusion, employees will also benefit from the modification because they do not have to worry about disciplinary inquiries or dismissal because they exhausted their sick leave and this will reduce the unemployment rate and poverty.

Dr Nombulelo Queen Mabeka LLB LLM (UWC) LLD (Unisa) is a Senior Lecturer in the Department of Jurisprudence at the University of South Africa in Pretoria.

This article was first published in De Rebus in 2023 (Jan/Feb) DR 14.