Let’s get COMPASSIONATE LEAVE out of the way first..
There is no such thing as ‘compassionate leave’. The Basic Conditions of Employment Act (BCEA) only provides for family responsibility leave. Your employees are allowed three days paid family responsibility leave a year and only to employees who’ve been working for you for at least 4 months of service and if he/she works at least 4 days per week. Anyone working for you for less than this isn’t entitled to these three days.
There are only three instances when you have to give family responsibility leave:
● the employee’s child is born
● the employee’s child is sick
● in the event of the death of
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
So in terms of the law an employee is not entitled to paid family responsibility leave in the event of the death of his spouse’s parents’ death. It’s important to note that the employer would need to accommodate the employee by allowing him or to take annual leave in this case.
SICK LEAVE
According to Occupational Care South Africa (OCSA), between 15% and 30% of staff can be absent on any given day and most of them are not even physically ill. Do you realise how much money your company loses in time, salaries and productivity when employees are having a ‘duvet day’, spa treatment or a shopping spree with friends?
How can you be sure you aren’t being taken for ride? If you think your employee’s abusing his leave, you can investigate the situation. You can ask for proof and discipline him if you find he’s been absent without an acceptable reason.
‘VISABLE’ ILLNESS OR INJURY (like lost limb or back injury) vs ‘INVISIBLE ILLNESS’ (like depression)
Case Law: Marsland v New Way Motor & Diesel Engineering (J4175/02) [2008] ZALC 157; (2009) 30 ILJ 169 (LC)
Marsland was a marketing manager at New Way Motor & Diesel Engineering. He started suffering from depression and anxiety after his wife asked for a divorce. He was absent from work for a few weeks and was put on anti-depressant medication.
Case facts in short:
When Marsland went back to work, his employer didn’t know how to deal with the problem. He took responsibilities away from Marsland without discussing it with him. Marsland felt he was ‘different’ and everyone was treating him with care. This frustrated him and made him to feel isolated. After about five months, the relationship got so bad that Marsland had to attend a disciplinary hearing where he received a final written warning for certain aspects of his behaviour. But, what’s important about this case, is his boss said there was nothing wrong with Marsland’s performance. Shortly after this, Marsland had another serious depressive episode and was booked off for two weeks. When he went back to work, his boss said there was a plan to outsource his functions. Marsland and his boss had a serious altercation about this. Marsland left the premises, never to return and took the matter to the Labour Court. The Court said the company had constructively dismissed Marsland because of his depression. The Court also said the dismissal was also automatically unfair because it related to a prohibited ground in terms of Section 187 of the LRA.
What can you learn from this case?
● Firstly, you can’t dismiss an employee because he has depression. In Marsland’s case the only reason for his dismissal was his depression. There weren’t any other acts of misconduct, nor was there a problem with his performance.
● Secondly, this is a difficult situation to face. This is because the law says you have to reasonably accommodate the employee. But you also can’t ignore the fact his performance isn’t up to scratch because of his illness. You should get expert advice on how to manage this in a way that deals with employee’s problem but also makes sure he still performs. Get advice from the employee’s psychologist or refer him to one.
● Part of the problem in this case was that his employer didn’t get advice. This meant he didn’t know how to handle the situation. Taking away his responsibilities without discussing it with him, and then isolating him, is the worst thing he could’ve done.
● Finally, dismissing someone for should be your last resort. Only do this if the employee can’t work properly because of the illness. And even in this case, you still need to consult with the employee on alternatives to dismissal. For example, hiring a temporary replacement, or adjusting some of his functions, before dismissing him.
EXTENDED ABSENCES
Your employee was injured in an accident while on holiday. He’s used up all his sick leave and you’ve given him some extra time off. You even let him take unpaid leave. But he’s been booked off again! You’ve done what you can, but your business can’t cope with these extended absences anymore.
In a case like this, you need to decide if it’s become a case of permanent incapacity. But you can’t just dismiss him; you need to see what is understood by unreasonably long sick leave.
The 4 factors to help you decide whether absence is unreasonably long are: the nature of the job, how long is the employee likely to be absent, how serious is the incapacity and is there a possibility the employee can be temporarily replaced.
Once you’ve tried all possible routes then you can follow the Incapacity for ill-health procedure.
Use this checklist to dismiss an employee for incapacity without worrying about the CCMA
● The nature of the job. What does it involve and how’s the illness or injury preventing him from doing it properly?
● How much longer his attendance at work will be erratic. Get his doctor to give his opinion of how long this will continue. You can send him to an expert of your choice, at your cost, if you want an independent assessment.
● The seriousness of the illness or injury. Consider the medical reports, the new prognosis, and second and further opinions if necessary. If the specialists say you can expect this to go on indefinitely, you have to consider the impact on the business.
● The possibility of a substitute. You may already have brought in a temp the first time around but consider doing it again if it won’t be too long, too disruptive or too costly.
● All reasonable alternatives. Try and lighten the employee’s duties, put him in an office job or take him out of the office for a while, etc. If you’ve already tried to accommodate him and it’s clear he can’t cope, see if there’s another job he can do. But you’re not obliged to create a vacancy.
● Consult throughout and let him know the seriousness of the situation – his job could be at stake. Remember, a fellow employee or trade union representative can assist him during the consultations. You must also consider all the employee’s points. Implement them if they’re workable and tell him in writing if and why you disagree.
You can hold an enquiry once you have complied with ALL the above. You must present all the evidence at the enquiry and give the employee, and his representative, an opportunity to respond.
IS IT SICK LEAVE WHEN AN EMPLOYEE GOES TO A CLINIC/DOCTOR FOR REGULAR CHECK-UPS?
Sick leave is intended for instances where the employee`s health is in such a way that he/she cannot perform work.
If the situation does not meet this requirement and a doctor has not booked the employee off from work, then sick leave won’t apply.
THE SANGOMA / TRADITIONAL HEALER
You cannot dismiss an employee for staying away from work when he has a medical certificate from a traditional healer. Even if it said he had ‘premonitions of his ancestors’. In this case, the employee didn’t undergo ‘medical treatment’ but was off for cultural, traditional belief or ancestral consultation. The Constitution recognises traditional beliefs and practices. So should employers.
On 30th April 2014 the President signed the Traditional Health Practitioners Act which states:
● From 1st May 2015 traditional health practitioners must register with the Council.
● This allows traditional health practitioners’ medical certificates to become proof of incapacity.
● After registration with the Traditional Health Practitioners Council of South Africa, the traditional healer must conform to the requirements for payment of sick leave just like any other medical practitioner.
The certificate justifies the employee’s absence from work. It is valid. You have to give him paid sick leave.
MEDICAL CERTIFICATES
What constitutes a ‘valid’ medical certificate (or ‘sick notes’ to use the common term)?
Rules with respect to medical certificates
A practitioner shall only grant a certificate of illness if such certificate contains the following information:
● the name, address and qualification of the practitioner
● the name of the patient
● the employment number of the patient (if applicable)
● the date and time of the examination
● whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds
● a description of the illness, disorder or malady in layman’s terminology, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work
● whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation
● the exact period of recommended a sick leave
● the date of issuing of the certificate of illness
● clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters
The abuse of sick leave or altering a medical certificate is serious misconduct and may result in a dismissal!
IN SHORT: Don’t break these 10 sick leave rules
You should NOT:
1. Give sick leave to employees who work less than 24 hours’ per month
2. Give paid sick leave to your employee if he takes more than the minimum days in terms of the BCEA
3. Reduce sick leave pay to below ¾ of your employee’s normal pay, if you come to an arrangement that you’ll pay him less on a sick day so he gets more sick days
4. Accumulate sick leave. Your employee will forfeit whatever he hasn’t used at the end of the sick leave cycle
5. Pay an employee if he was absent from work for more than 2 consecutive days or on more than 2 occasions during an 8 week period and doesn’t give you a medical certificate when you ask for it
6. Ask for a medical certificate for a single day of sick leave. Unless you identify a pattern of absence over an 8-week period.
7. Pay an employee for sick leave if you have proof his medical certificate was forged
8. Apply sick leave to periods when an employee can’t work because of an injury or occupational disease. As defined in the Compensation for Occupational Injuries and Diseases Act or the Occupational Diseases in Mines and Works Act
9. Pay sick leave for employees to visit the doctor for check-ups or appointments. Unless the doctor states he’s unable to work because of an illness. Rather allow unpaid leave
10. Give an employee sick leave to undergo voluntary cosmetic surgery. Unless it’s for specific medical reasons and he’s unable to work.
Remember, your employee must be too ill to work to claim sick pay. If you have proof he wasn’t ill enough not to work, have a meeting with him to correct his behaviour. If the abuse continues, you can take disciplinary action for abuse of sick leave or absence without leave.
Employees must plan and apply for leave in advance. This isn’t a valid excuse – the employee would know in advance he needs to go.
Stress to employees that it’s in their interest to keep you informed of their whereabouts. Make sure they fully understand the role leave plays and their responsibilities to you. You have the right to expect that an employee will be at work and will do the work you pay them for.
Please contact us on (011) 432-8124 / (011) 432-0846 to ensure you’re 100% compliant!