Sick leave is not extra holiday, it’s when illness befalls employees

IN TERMS of the Basic Conditions of Employment Act every employee has a sick leave entitlement equal to the number of days the employee would normally work during a six-week period. If an employee is incapacitated, then is entitled to be paid the daily rate of payment up to and including the full amount of sixweeks pay.

During the first six months of employment, the employee would be entitled to one day’s paid sick leave for every 26 days work. Thereafter, the employee falls into the full 36 months employment cycle.

The employer must pay the employee for a day’s sick leave the wage the employee would normally earn on that day. The payment will be made on the normal pay day.

Obviously, an employee must be in a situation where he or she can’t work due to illness. Just because sick leave is owing it doesn’t mean the employee can access that sick leave.

Over and above this, an employer is not required to pay the employee if that employee has been absent from work for more than two consecutive days or on more than two occasions during an eight week period.

The employer may require the employee to produce a valid medical certificate stating that the employee was unable to work because of ill health. The employer will request such a medical certificate and if the employee is unable to produce such a certificate then the employer does not need to pay for the sick leave that has been taken. The medical certificate must be in writing and signed by a certified medical practitioner. The medical practitioner must be registered with a professional council established by an act of Parliament. The employer could ask for the practitioner’s practice number.

Parliament has not as yet opened a register for sangoma’s.

There have been many cases where an employee has forged a medical certificate on stolen doctor’s stationery. This forgery always leads to dismissal after a disciplinary hearing.

The employee who is found to be out and about while on sick leave also faces possible disciplinary action for pretending to be ill even if that employee can produce a medical certificate.

It must be remembered that the medical certificate is a mere recommendation to the employer that the employee is ill and cannot work.

When an employee has used up all the sick leave but again has to take sick leave, this leave will still be granted but on an unpaid basis. Schedule 8 to the Labour Relations Act “Code of Good Practice; “dismissal” does introduce a structure for employers to follow with regard to guidelines in cases of dismissal arising from ill health or injury. The employer has to determine whether this dismissal is unfair by undergoing an exercise establishing whether the employee is capable of performing the work and if not capable, for how long and whether there is any suitable alternative work.

Certain types of ill health will lead to the employer handling the issue differently and in certain circumstances might require counselling and or rehabilitation.

If the incapacity for ill health or injury is temporary, then the employer must investigate whether the absenteeism would be for an unreasonably long time.

The employer is obliged to conduct a proper investigation to ascertain whether the injury or ill-health is permanent or temporary and whether the business can accommodate the person elsewhere. Even if incapacity was caused by the employees conduct, the sick leave payment plan can be claimed by the employee. However, if the incapacity was caused by an illness or an accident defined in terms of The Workmen’s Compensation Legislation then this compensation must be claimed under those pieces of legislation.

Also, if the employee lives on the employers premises, the employer must provide reasonable assistance to help the employee to obtain a medical certificate. Employees must understand that incapacity arising from ill health can be a legitimate reason for terminating the employment relationship.

However, the termination must be done fairly and properly in terms of The Code of Good Practice attached to the Labour Relations Act as deemed to be mandatory for all employers.

There still exists a common myth that sick leave can be taken even if the employee is capable of performing his or her work functions.

I had an occasion to be walking the factory floor when I heard a group of employees discussing who would be taking sick leave the next day.

They were shocked to hear me explain that sick leave can only be accessed if someone was actually sick.