Can I be dismissed for being off sick?

You cannot be dismissed simply because you are off sick. Illness is not misconduct, and taking the sick leave you are entitled to is not a reason for dismissal. What the law does allow is a dismissal for incapacity due to ill health or injury, but only where the employer has investigated how serious your condition is and how long it is likely to last, considered whether it can adapt your job or find you another one, consulted you about all of this, and concluded that there is no reasonable alternative. Dismissal is meant to be the last step, not the first.

This guide is part of our Discipline at work: warnings, hearings and dismissal, which links every guide on the topic.

This guide covers your sick leave entitlement under the Basic Conditions of Employment Act 75 of 1997, when illness becomes incapacity, the procedure the Labour Relations Act 66 of 1995 and the Code of Good Practice: Dismissal, 2025 require, and what to do if your employer skips it. The 2025 Code replaced Schedule 8 of the Labour Relations Act from 4 September 2025, so older articles that cite Schedule 8 describe the previous version of the rules.

Your sick leave entitlement

Sick leave runs in three-year cycles that start on the day you begin work. In each cycle you are entitled to paid sick leave equal to the number of days you would normally work in six weeks. For someone who works five days a week that is 30 days. For someone who works six days a week it is 36 days. During the first six months of employment the entitlement is pro rata: one day's paid sick leave for every 26 days worked.

Your employer may ask for a medical certificate if you are off for more than two consecutive days, or if you are off more than twice in an eight-week period. Without a certificate in those situations it does not have to pay you for the days. The certificate must come from a medical practitioner or another person who is certified to diagnose and treat patients and registered with a professional council.

Sick leave does not accumulate from one cycle to the next. Unused days fall away. Your contract or a collective agreement may give you more than the minimum, but not less. Our guide to the rules for sick leave covers the cycle, pay and certificates in more detail.

When illness becomes incapacity

Short absences with a valid certificate are ordinary sick leave and are not a dismissal issue. The problem arises when illness or injury keeps you from your job for an extended period, or when short absences become so frequent that the employer says it cannot run the business around them. At that point the employer may start an incapacity process.

Item 21 of the 2025 Code deals with incapacity caused by physical or mental ill health or injury, and distinguishes between temporary and permanent incapacity. If your condition is temporary, the employer should investigate how serious it is. If you are likely to be away for a time that is unreasonably long in the circumstances, it should investigate all the possible alternatives short of dismissal. The Code names the factors: the nature of the job, the period of absence, how serious the illness or injury is, and whether a temporary replacement can be found. Dismissal for a temporary condition is harder to justify, especially after long service. If your condition is permanent, the employer should look for alternative work or adapt your duties or working circumstances to accommodate you before considering dismissal.

There is also a difference between incapacity and misconduct. If you were off sick with a valid certificate, that is incapacity. If the employer believes you submitted a false certificate, or were not actually sick, that is an allegation of misconduct, and the disciplinary hearing rules apply instead. Employers sometimes mix the two up, and the mix-up itself can make a dismissal unfair. Our guide on incapacity versus misconduct explains why choosing the wrong track so often loses at the CCMA.

The procedure the employer must follow

Before dismissing for ill health the employer should:

1. Investigate the extent of the incapacity. That means finding out from you, and with your consent from your doctor, what the condition is, how it affects your ability to work, and how long it is expected to last.
2. Consider alternatives to dismissal. Adapted duties, reduced hours, a different post, extended unpaid leave, or a delay to see whether you recover.
3. Consider accommodation. Whether the employer can reasonably change the workplace or the job so that you can continue. Where the condition amounts to a disability, the Employment Equity Act 55 of 1998 adds a duty to accommodate reasonably.
4. Consult you. Item 21(3) of the 2025 Code says you should be allowed to state a case in response and to be assisted by a trade union representative or fellow employee. In practice that also means a chance to propose alternatives. This is often called an incapacity hearing or incapacity enquiry, but it is a discussion about your health and your job, not a disciplinary hearing.
5. Decide, and give reasons. The Code does not prescribe a written decision, but a written outcome that explains why the alternatives were not possible is good practice, and it is what a commissioner will look for. You can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) whether or not the letter mentions that right.

An employer that skips these steps, or sends a dismissal letter the day your paid sick leave runs out, will struggle to show the dismissal was fair.

If your illness or injury was caused by your work, different rules apply and the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is involved. Item 21(5) of the 2025 Code also says that the employer's duty to accommodate is more onerous where an employee was injured at work or has a work-related illness, so an employer should be particularly careful before dismissing someone in that position.

A worked example

This example is illustrative.

Precious is a receptionist earning R11 000 a month with four years' service. In March she is diagnosed with a back condition that needs surgery and rehabilitation. Her doctor books her off for eight weeks, then extends it by six. She uses up her 30 days of paid sick leave in the first six weeks. Her employer pays nothing for the balance, which it is entitled to do, and she claims the UIF illness benefit to cover the gap.

In week ten HR writes to her saying that her sick leave is exhausted and her employment "is terminated with immediate effect due to incapacity". There has been no meeting, no request for a medical report and no discussion of a return date or lighter duties.

Precious refers an unfair dismissal dispute to the CCMA within 30 days. At conciliation her employer argues that the front desk cannot run without a receptionist for three months. The commissioner points out that the employer never asked when she would return, never considered a temporary replacement, and never consulted her. The employer offers reinstatement with a phased return, and the matter settles. Had it gone to arbitration, the absence of any investigation or consultation would have made the dismissal procedurally and probably substantively unfair, with compensation of up to 12 months' remuneration, which is R132 000, available. Most awards are lower than the cap. See how much compensation the CCMA can award.

What to do this week

1. Get every absence certified. Keep copies of all medical certificates, not just the originals you hand in.
2. Tell the employer in writing what your doctor says about your condition and your expected return date, as far as you are comfortable sharing.
3. Ask for a meeting to discuss how the work can be covered and whether adapted duties are possible. Put your own proposals forward.
4. Check your sick leave balance and how many days remain in your current cycle.
5. Apply for UIF illness benefits if your paid sick leave is exhausted. The UIF benefits calculator estimates what you may get.
6. If you are dismissed, diarise day 30 and refer to the CCMA on 0861 16 16 16. The CCMA deadlines calculator works out the date.

Documents to gather

Your contract, the last six payslips, all medical certificates and any medical reports you are willing to share, your sick leave record from HR, every letter or email about your absence, minutes of any incapacity meeting, the dismissal letter, the company's sick leave and incapacity policies, and any evidence of alternatives you proposed. If the injury happened at work, add the incident report and any workers' compensation paperwork.

A realistic timeline

• First absences. Certified sick leave, paid from your entitlement.
• Extended absence. Paid leave runs out. Unpaid leave or UIF illness benefits. The employer may start an incapacity process.
• Incapacity enquiry. One or more meetings, often over several weeks, while medical information is gathered and alternatives are explored.
• Decision. Continued employment on adapted terms, extended unpaid leave, or dismissal with notice or notice pay.
• If dismissed, day 30. Deadline to refer to the CCMA.
• About 30 days later. Conciliation, then arbitration if unresolved. See how long a CCMA case takes.

Common mistakes and what they cost

• Not getting certificates. Uncertified absence beyond two days can be unpaid, and repeated uncertified absence can become a misconduct issue.
• Going silent. Not answering the employer's calls or letters makes it easier for the employer to say it tried to consult and you did not engage.
• Refusing every alternative. If you turn down reasonable adapted duties without good reason, dismissal becomes easier to justify.
• Resigning because you feel like a burden. A resignation ends your claim. Let the employer follow the process.
• Missing the 30 day deadline after a dismissal. Condonation is not guaranteed.

Your rights vs the employer's rights

You have the right to your paid sick leave, to be paid for certified absence within your entitlement, to keep your medical details private beyond what is needed to assess your ability to work, to a proper investigation and consultation before any incapacity dismissal, to reasonable accommodation where your condition is a disability, and to notice pay, leave pay and any other money owed if you are dismissed. Check the figures with the notice period calculator and the leave payout calculator.

The employer has the right to require medical certificates, to stop paying once your entitlement is used up, to ask for enough medical information to plan around your absence, to take reasonable steps to keep the business running, and, after a fair process, to dismiss where there is genuinely no reasonable alternative.

If you cannot afford an attorney

The CCMA is free. Phone 0861 16 16 16. A bargaining council handles the dispute if one covers your sector. Your union can assist at no cost. The Department of Employment and Labour deals with unpaid sick leave and other Basic Conditions of Employment Act complaints. Legal Aid South Africa on 0800 110 110 applies a means test. Representation at CCMA arbitration for incapacity dismissals is at the commissioner's discretion, so the process is built for people who represent themselves. See what labour matters cost if you are weighing an attorney.

Frequently asked questions

People often ask whether an employer can dismiss them while they are still on certified sick leave. There is no rule that prevents it, but the employer must still follow the incapacity procedure, and dismissing someone in the middle of a certified recovery period without consultation is hard to justify. Others ask whether mental health conditions count. They do, and item 21 of the 2025 Code expressly refers to physical or mental ill health. Depression, anxiety and similar conditions are illnesses, and the same rules on certificates, incapacity and accommodation apply. A third question is what happens if the employer says they are "always off sick". Frequent short absences can lead to an incapacity process, but the employer still has to investigate the cause and consult before dismissing.