Ill Health / Injury

Sick Leave – Minimum Entitlement

Sick leave works in a three-year cycle. An employee who works five days per week is entitled to 30 days paid sick leave and an employee who works six days per week to 36 days during a three-year cycle.

During every sick leave cycle an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. An employee may take one day paid sick leave for every 26 days worked during the first six months of employment and thereafter an employee may take the number of days he/she normally works in six weeks during each three-year cycle.

An employee may be requested to produce a valid medical certificate if he/she has been absent from work for two days in a row or more than twice in eight weeks.

If the employee does not have a valid medical certificate the employer does not have to pay the employee for the sick leave taken.

Dismissal for illness or injury
Illness or injury (incapacity) of a serious nature may be a valid reason for dismissal. The opinion of an expert may be necessary to determine the seriousness of the incapacity. The specific circumstances of each case must be considered to determine the fairness of dismissal.

Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all possible alternatives short of dismissal. When alternatives are considered, the employer must consider the following aspects –

The nature of the job;
the period of absence;
the seriousness of the illness/injury; and
the possibility of a temporary replacement

Employers should make a special effort to accommodate employees who have been injured at work or who contracted a work-related disease.

Permanent
Should the incapacity appear to be of a permanent nature, the employer should establish whether it is possible to –

Find alternative employment for the employee;
adapt the duties or work circumstances of the employee to accommodate the disability/illness.
If no such possibilities exist, then dismissal is justified

Guidelines in dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should consider –

Whether or not the employee is capable of performing the work; and
if the employee is not capable –
the extent to which the employee is able to perform the work
the extent to which the employer’s work circumstances might be
adapted to accommodate disability, or, where this is not possible,
the extent to which the employee’s duties might be adapted; and
the availability of any suitable alternative work.

NOTE: In terms of case law, counselling is highly desirable when dealing with dismissal or instituting other measures relating to illness/injury in the workplace.

Rehabilitation and/or counselling may be considered, for example, for alcohol or drug abuse. Illness/injury and misconduct issues sometimes overlap. For example, abuse of sick leave or where an employee reports for work in a drunken state – this may be regarded as misconduct or illness (alcoholism), depending on the merits of the specific case.

Compensation Commissioner
With some exceptions, any employee who suffers a workplace-related injury or disease is entitled to compensation. To qualify for compensation, the employee must be able to show that the injury or disease is work-related. Workers must report their injury or disease to their supervisor or employer immediately.

Their employer must report it to the Compensation Commissioner.

Jurisdiction
Unfair dismissal disputes (ill-health or injury) should be referred to the CCMA. Claims for compensation for workplace-related injury or disease should be referred to the Compensation Commissioner on:
Tel:  (012) 319-9111 or 0860 105 350.

Relevant Legislation
Labour Relations Act, schedule 8, as amended, items 10 -11.
Basic Conditions of Employment Act, as amended, ss22 – 24.
Compensation for Occupational Injuries and Diseases Act.
Compensation for the Occupational Diseases in Mines and Works Act.