Estimated reading time: 9 minutes
Repeated employee absence can put pressure on an entire business. Colleagues cover additional duties, deadlines slip and managers need to keep operations running.
Before taking action, however, employers should establish why the employee is absent. Is the employee deliberately disregarding a workplace rule, or could a health condition be affecting their ability to work? A recent Labour Court judgment shows why the evidence must guide the process.
In short: When an employee’s absence may be linked to a physical or mental health condition, employers should investigate before treating it as misconduct or abscondment. In Matjiu v Rustenburg Platinum Mines (Labour Court, 9 September 2026), the Court set aside an award that treated an absence as desertion and excluded evidence of severe depression. Establish the facts, assess the medical evidence and consider an incapacity process before deciding.
What happened in Matjiu v Rustenburg Platinum Mines?
In Matjiu v Rustenburg Platinum Mines Ltd and Others [2026] ZALCJHB 308, delivered on 9 September 2026, an employee was dismissed for unapproved absence after she did not return to work.
She last worked in May 2022 and was then on sick leave until January 2023, supported by 22 medical certificates. The later certificates related to psychological and psychiatric treatment, and the last one, from a clinical psychologist, diagnosed major depressive disorder, described as severe. That certificate gave a return date, but she did not return and supplied no further certificate. The employer issued a pre-dismissal notice and terminated her employment. It held no disciplinary or incapacity enquiry first.
At the CCMA, the commissioner treated the absence as desertion and upheld the dismissal. However, he excluded evidence relating to incapacity and did not decide whether the matter should have been dealt with as incapacity rather than misconduct. The parties had specifically listed that question as an issue in dispute.
The Labour Court set aside the award. It sent the dispute back to the CCMA for a new arbitration before a different commissioner, to be conducted as an enquiry into incapacity.
The Court did not find that the dismissal was unfair. It required that question to be decided afresh, on the relevant evidence.
Not sure whether an absent employee’s case is misconduct or incapacity? Speak to a SEESA Specialist.
Why does the difference between misconduct and incapacity matter?
Misconduct concerns blameworthy conduct, such as a culpable failure to comply with a workplace rule. Ill-health incapacity concerns an employee’s inability to work because of a physical or mental health condition.
The distinction affects both the reason for dismissal and the process an employer should follow. For a broader guide, see how to choose between misconduct, poor performance and incapacity.
However, a diagnosis does not automatically excuse every absence or breach of a reporting rule. In Legal Aid South Africa v Jansen [2020] ZALAC 37, the Labour Appeal Court confirmed that the circumstances matter, as does the evidence connecting the condition to the conduct. Depending on the facts, depression may call for an incapacity investigation, reduce an employee’s blameworthiness, or be relevant when deciding an appropriate sanction. We look at this question in more detail in is depression a valid defence against misconduct?
For employers, the practical question is: what does the evidence show about the employee’s ability to attend work and comply with the relevant rules?
Is it abscondment if an absent employee is ill?
Abscondment or desertion is the label often used when an employee stays away without permission and stops making contact. The Labour Court has described desertion as requiring an intention not to return to work, which the employer must establish through a fair process (Msibi v CCMA [2017] ZALCJHB 245). In a 2025 case, however, the Labour Court upheld dismissals under an employer’s desertion policy based on unauthorised absence alone, even though the employees had a reason for being away (Sibanye Rustenburg Platinum Mines v CCMA [2025] ZALCJHB 207).
Where there is evidence that the absence is linked to illness, the question changes. In Matjiu, the employer’s policy treated six consecutive working days of absence as desertion, and the commissioner applied it. The Labour Court set the award aside because the commissioner did not decide whether the matter should have been dealt with as incapacity, the very question the parties had asked him to decide. Before treating an ill employee’s absence as abscondment, consider whether an incapacity process is needed.
For private-sector employers, neither the Labour Relations Act nor the Basic Conditions of Employment Act sets a number of days after which absence becomes abscondment. Many employers set a period in their absence policy, but following the policy does not replace a fair process. The public service and public-school educators are different: their own legislation treats an employee who is absent without permission for more than one calendar month, or an educator absent for more than 14 consecutive days, as dismissed for misconduct, unless the employer directs otherwise (Public Service Act, s17(3); Employment of Educators Act, s14).
For the full process, see our guide to absenteeism, abscondment and desertion.
What does the current Code of Good Practice: Dismissal require?
The Code of Good Practice: Dismissal took effect on 4 September 2025 and replaced the former Schedule 8 code. Employers handling cases now should follow the current Code, even where judgments discuss earlier provisions that applied to older dismissals.
Its item on ill-health incapacity (item 21) requires employers to:
- investigate the extent of the incapacity
- consider alternatives to dismissal
- give the employee an opportunity to state their case, with the assistance of a trade union representative or fellow employee.
What should employers do before deciding how to act?
1. Establish the facts and contact the employee
Record the dates of absence, any communication received and your attempts to contact the employee. Give them an opportunity to explain what happened.
Ask about both the absence and any failure to follow reporting procedures. Avoid reaching a conclusion before considering the explanation and the available evidence.
2. Consider what the medical evidence actually shows
Review the relevant certificates and any information about the employee’s ability to work. Where the position is unclear, ask for clarification about functional limitations and the likely duration of the condition.
Ask for the employee’s consent before contacting their medical practitioner, and keep health information confidential. For the sick leave rules that apply alongside this, including when you can ask for a medical certificate, see our guide to sick leave in the workplace.
A diagnosis alone may not explain why a particular incident occurred. Equally, an employer should investigate a potentially relevant health condition before deciding that the employee’s conduct was blameworthy.
3. Decide whether an incapacity process is appropriate
Where the evidence suggests that illness may have affected the employee’s ability to work, investigate the extent of the incapacity and whether it is temporary or permanent. Allow the employee to state their case and to be assisted by a trade union representative or fellow employee.
For a step-by-step guide, see the employer’s guide to ill-health incapacity. Where mental health is involved, also read mental health dismissal in South Africa: what employers should know.
4. Consider alternatives before dismissal
For temporary incapacity, consider:
- the likely length of absence
- the nature of the job
- the seriousness of the illness
- whether a temporary replacement is possible.
For permanent incapacity, investigate suitable alternative employment, or adjustments to duties or working circumstances. The Code places a more onerous duty to accommodate on employers where the incapacity results from a workplace injury or work-related illness.
5. Keep a clear record of the decision
Document the employee’s explanation, the relevant evidence, the consultation and the alternatives you considered. Record why proposed arrangements were workable or unsuitable, and the reasons for the final decision.
These records show how the business assessed the circumstances and reached its conclusion. For how this fits into a disciplinary route, see the correct disciplinary process in South Africa.
Can dismissal for ill-health incapacity still be fair?
Yes. Ill-health incapacity can justify dismissal where there is a fair reason and a fair process. Employers do not have to assume that every employee with a health condition is unable to work, or that disciplinary action is always inappropriate.
The decision must reflect the individual circumstances, the effect of the condition and the alternatives available. Managing attendance fairly starts with understanding the reason for the absence.
How can SEESA help?
Unsure whether an employee’s absence should be handled through discipline or an ill-health incapacity process? SEESA’s Labour Law specialists help employers assess the circumstances, choose the appropriate process and prepare the necessary documentation.
Speak to a SEESA Labour Law specialist about handling absence and ill-health incapacity in your workplace.
Frequently Asked Questions
Possibly, but where the absence may be linked to ill health, the employer should investigate, consider alternatives and give the employee a chance to respond before deciding. Dismissal can be fair if both the reason and the process are fair.
Not automatically. What matters is the evidence connecting the condition to the conduct. Depending on the facts, it may point to an incapacity process, reduce blameworthiness or affect the sanction.
Do not assume desertion. Contact the employee, consider the earlier medical evidence and ask whether an incapacity enquiry is needed. Matjiu shows the risk of skipping this step.
Not necessarily. Where there is evidence that the absence is linked to illness, consider whether an incapacity process is needed before treating it as abscondment or desertion. Matjiu shows the risk of skipping that question.
For private-sector employers, the Labour Relations Act and the Basic Conditions of Employment Act don’t set a number of days. Your absence policy may set one, but you should still investigate, try to contact the employee and follow a fair process. Different rules apply in the public service and to public-school educators.
No. The Code of Good Practice: Dismissal replaced Schedule 8 on 4 September 2025, so current cases should follow the new Code.
This article provides general information and does not constitute legal advice. It reflects the law as at October 2026. Requirements may differ according to the employer’s industry, collective agreements and circumstances.