Can an employer withhold pay if you are ill and have exhausted the sick and annual leave?

The long answer

As your father's employer does not have a specific cancer programme like extra sick leave benefits or short-term insurance, the Basic Conditions of Employment Act (BCEA) applies. Labour Guide says that this means that, “Unfortunately, if all sick leave has been exhausted as well as all available annual leave in the current cycles, and the employee requires further sick leave, there is no legal obligation on the employer to pay the employee and the additional requirement may be treated as unpaid leave.”

Though the employer is clearly not intending to dismiss your father at this point, it’s worth knowing that the Labour Relations Act (LRA) says that there are only three legal grounds for dismissal: misconduct, incapacity, and operational requirements. Prolonged illness falls under incapacity due to ill health.

Before taking any steps to terminate employment, the LRA says that the employer must consult the employee, review medical reports, and assess reasonable accommodations or short/long-term disability options.

What are reasonable accommodations? 

Nova News says “Reasonable accommodation” includes the following:

• Adjusted working hours 

• Temporary remote or hybrid work

• Reduced workload

• Temporary reassignment to less demanding work

• Adjusted performance expectations during treatment

Life Healthcare says that if your cancer diagnosis or treatment has materially affected your ability to perform your job permanently, your employer has a legal obligation to accommodate you and give you a reasonable chance to return to some other form of work. They say that this accommodation can include changing your job title, position, or responsibilities, reducing your salary and/or removing some of your benefits. These changes need to be discussed and agreed upon by both parties, otherwise, it can constitute an unfair labour practice. 

They go on to say that if you refuse these changes, but are still unable to perform your existing job, you may be at risk of your employer terminating your employment due to incapacity.

So where does this leave your father? It seems that his only financial alternative at present is to claim illness benefits from UIF, which provide partial income replacement. UIF illness benefits are calculated between 38% and 60% of earnings, for up to 238 consecutive days, depending on accumulated credits. (UIF looks at the last four years of employment to calculate credits.) 

As your father’s situation must be causing great stress, both to him and his family, he may want to contact a support organisation like the Cancer Association of South Africa (CANSA). CANSA provides free confidential, professional telephonic counselling to cancer patients and their families. You can book what they call Tele Counselling online on their website. You can also download their booklet called Human Rights and Cancer in the Workplace on their website

You can call the Cancer Association of South Africa Help Desk at 0800 22 66 22

Wishing you the best,
Athalie