I received an interesting query from a reader that relates to taking sick leave for the purposes of cosmetic surgery.

She is not blessed in the breast department and has been at the receiving end of jokes, insinuations and other banter for years. Even her boss openly jokes about it.

The situation has deteriorated to a stage where it is affecting her on a psychological level and as a result she is feeling a lack of confidence at work. She decided to undergo a breast enlargement operation to address the situation.

Her application for sick leave for the operation and subsequent recovery period was however rejected by her employer. She wants to know whether this is acceptable and what her rights are.

To answer the question, I’ll start with a brief overview of the intended purpose of sick leave and how it is allocated.

In common law, a failure to report for work would amount to a breach of a material term of the contract and warrant instant dismissal. Fortunately, our society has progressed to recognise that there may be valid reasons why an employee cannot report for work.

One such reason could be genuine illness or injury resulting in an inability to adhere to the contract.

Sick leave is thus a social protectionist provision, which means it has been enacted to protect employees from not losing pay for incidents of genuine illness when they cannot comply with their common law duty and contractual obligation to place their labour at the disposal of the employer.

This protection in the Basic Conditions of Employment Act, 1997, is however limited to the same number of days that you would work in a six-week period. For instance, if you work six days per week, you are entitled to 36 days paid sick leave in a three-year cycle.

The act foresees abuse of sick leave and instituted the eight-week rule, which provides that if employees are absent without a medical certificate more than twice over said period, the employer may insist on the employee producing a medical certificate on every occasion of absence thereafter.

Employers may also request a medical certificate if you are absent for longer than two days.

The crux of the matter is that you must be genuinely ill or injured when claiming paid sick leave. In the case of cosmetic surgery or laser treatment to your eyes, the operation will result in a genuine inability to perform work due to medical reasons.

In this case, you will be booked off from work by a registered medical practitioner and you will be entitled to paid sick leave in accordance with the number of days that you have accumulated or that are still available to you in your current three-year cycle.

It is irrelevant if it is for cosmetic surgery, whether related to an accident or because you want to improve your looks or your sight. If a medical practitioner has certified that you are unable to perform work due to medical reasons, it is sufficient.

To interpret it in any other way would mean that if I play soccer on the weekend and break my leg, the company would be entitled to argue that it is a self-inflicted injury or that I was negligent and therefore not entitled to sick leave.

That would be absurd. No such restriction is placed on the utilisation of sick leave.

However, if the cosmetic surgery depleted the reader’s allocation of sick leave and she suffers from flu or any other ailment during the same cycle, then her absence would unfortunately be without pay.

Send your labour and other workplace related questions to coetzee@fullstopcom.com.

Robert Niemand from LabourNet in Port Elizabeth is an award-winning labour law consultant. He is also a part-time commissioner at the CCMA, a labour law and labour relations lecturer and a contributor to various publications.

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Coetzee Gouws
041 368 4992
082 575 7991

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