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The right to query sick notes
Medical certificates, the question arises time and time again. Employers believe that if the employee produces a medical certificate as justification for a period of absence, the employer is bound to pay the employee. Employees also believe there is nothing the employers can do, except treat the absence as paid sick leave. This leads to abuse of the system.
Medical certificates constitute hearsay evidence. In a 2006 court judgment handed down by the Labour Appeal Court, the matter was addressed.
The Evidence Amendment Act 45 of 1998 makes it clear that hearsay evidence includes evidence given in writing by a person, other than the deponent to an affidavit. This means that a medical certificate, which is submitted by the employee, is evidence given in writing by another person - and therefore consitutes hearsay evidence. Hearsay evidence is not admissible unless it is supported by other direct evidence. The court stated that absence of affidavits from the doctors led to the inference that they were not prepared to defend the certificates under oath. Employers do not have to accept medical certificates - such a document comprises hearsay evidence and the employer is fully entitled to query it, or, depending on the circumstances, to simply reject it and take disciplinary action against the employee, or simply treat the period of absence as unpaid leave.
Labour outsourcing in SA
There has been a considerable growth of temporary employment services, or labour brokers, as they are more colloquially known, in South Africa over the past five years. In discussing the reasons for such enormous growth with labour brokers and those companies utilising their services, it is evident that there are two main reasons for this growth.
Firstly, there is a perception that the costs of complying with the employment laws are high, as are the costs of the direct administration of employees, and organisations are better served by temporary employment services (TES') who have the infrastructure to manage such compliance.
Secondly, that labour brokers often build up a pool of specialist employees who can be brought into a client organisation and utilised at the highest level of efficiency on short notice.
The common factor between these two reasons being one of cost, as an accepted norm in the TES industry is that the costs of utilising the services of a TES are approximately 10% of what it would cost to directly employ a temporary employee. It would be interesting to compile a report on the difference between employing temporary employees directly, as opposed to through a TES, over a 24 month period. It has been my experience that, on the whole, TES' are generally more efficient as temporary employment remains their core business, whereas in most instances other organisations use temporary employees in pursuance of their core business.
Relevant Legislation
The Labour Relations Act ("LRA") makes provision for TES' to lawfully exist and trade, with emphasis on the fact that an employee of a TES will remain an employee of the TES, irrelevant of the employee performing services for a client of a TES.
There is, however, joint and several liability on both the TES and the particular client of the TES in terms of Section 198 of the LRA with respect to contraventions of collective agreements, arbitration awards, the Wage Act or the Basic Conditions of Employment Act.
Section 82 of the Basic Conditions of Employment Act specifically spells out the ambits of such joint and several liability, which would range from salary shortfalls, overtime disputes, and/or incorrect working hours.
In terms of Section 57 of the Employment Equity Act, an interesting situation arises in that, for the purposes of employment equity, a TES employee who provides services for an indefinite duration or a period of three months, is deemed an employee of that particular client and, furthermore, where there has been an act of unfair discrimination, both the TES and the client remain jointly and severally liable.
Contractual Arrangements
The operation of a TES usually involves a tripartite relationship between the TES and client, and the TES and a particular employee. Careful examination of the TES industry reveals an administratively intensive industry in which the TES' are extremely particular with employment contract administration as there are clear pitfalls in circumstances where fixed term contracts, for example, are not monitored or permitted to roll for months on end.
The principle agreement entered into between the TES and the client usually provides for a series of indemnities from the TES to the client in respect of various issues, including those areas in which the client would be jointly and severally liable.
The most common area for dispute is one in which employees frequently seek relief against a TES client erroneously. This often has its roots in either a misunderstanding of the nature of the relationship or, alternatively, a desire for some type of employment permanency with the client rather than with the TES.
This entails disputes directly against the client being referred in terms of the dispute resolution mechanisms of bargaining councils and the CCMA, necessitating the need for the TES intervention to clarify the situation. There should be no need for such disputes if TES' have entered into substantial contracts with their employees, in which the nature of the relationship is spelt out. Clearly, this is an obligation incumbent upon the TES.
Injury on Duty - WCA
By following the following rules all should go well when reporting and claiming from the Compensation Fund.
1.An injury necessitating outside medical treatment requires completion of Part A, Page 1 of the Employers Report of an Accident (W.Cl.2) Part B is given to the employee to be handed to the doctor or emergency services.
2.The employer must obtain the First Medical Report (W.Cl.4) from the doctor, complete it and send the pages with the W.Cl.4 form and a certified copy of the employees ID to the Compensation Commissioner within 7 days.
3.The Commissioner will send the employer a postcard (W.Cl.55), providing a claim number which must be used on all correspondence.
4.Once the claim has been considered and the liability accepted, will a postcard (W.C.l.56) be sent to the employer. If no W.C.l.56 is received, liability is not accepted.
5.In cases of prolonged absence, a Progress Medical Report (W.Cl.5) form must be obtained from the doctor every month and submitted to the Commissioner.
6.A Final Medical Report (W.Cl.5) will be issued once the doctor is satisfied the employee is fit for duty. Said report must be submitted to the Commissioner.
7.A Resumption Report (W.Cl.6) must be completed when the employe returns to work and submitted to the Commissioner.
Only on receipt of all the reports will the Commissioner make payments and close the case.
CLAIM CRITERIA
- If an employee is booked off for an IOD for 3 days or less, the Commissioner does not pay a cent. The employer does therefor not need to pay the employee either.
- If an employee is booked off for an IOD for 4 days or more, but less than 3 months, the employer pays the injured employee at a rate of 75% of basic wage from day 1 until the employee returns to work.
- Should the period exceed 3 months, the employer pays at a rate of 75% of basic wage from day 1 for 3 months ONLY.
Minimums for annual leave
The Basic Conditions of Employment Act states that the provisions for annual leave do not apply to an employee who works less than 24 hours a month for an employer, and also these provisions do not apply to leave granted to an employee in excess of the entitlement allowed by the act.
An annual leave cycle is a period of 12 months with the same employer, calculated from the employees start date or from the completion of the emp[loyee's previous leave cycle.
The entitlement is 21 consecutive days on full remuneration and if an employee works a five-day week then this is equal to 15 working days, or if the employee works a six-day week then it is equal to 18 working days.
Whatever number of working days falls within the 21 consecutive days is the number of working days on full pay that an employee should be granted for annual leave purposes. If an employee works a five-day week, then the annual leave would accrue at 1.5 days a month.
An alternative method of calculating annual leave has been provided for in the Act. This provides for an easy means of calculating the annual leave for temporary or fixed-term employees. This method makes provision that the annual leave may be calculated on the basis of one hour of annual leave on full remuneration for every 17 hours on which the emplyee worked, or was entitled to be paid, or it could be calculated on the basis of one day annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid.
This method of accrual may only be applied by agreement with the employee. If there is no such agreement then the employer is obliged to apply the accrual at the rate of 1.25 days or 1.5 days monthly.
Should a public holiday fall during a period while an employee is on annual leave and on the day in which an employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.
The employee is entitled to take whatever leave he has accumulated in an annual leave cycle on consecutive days. This means that if an employee has, for example, accumulated 10 days during an annual leave cycle, he is entitled to take those 10 days consecutively.
Annual leave not taken during an annual leave cycle is automatically carried over to the next annual leave cycle. Should the leave be carried over and the employee has still not taken leave within six months, the employee could demand to take that leave from the previous cycle and the employer may not refuse.
Absenteeism
Dismissing an employee for absenteeism can be problematic when it appears that the reason for absence was a chronic medical condition. The difficulties that an employer might face in these situations were illustrated in a recent arbitration in favour of the National Union of Mineworkers of SA (Numsa) against Rewu and Borbet SA (Pty) Ltd.
The company had introduced a "Sick Absence Control Procedure" (SACP)due to problems experienced with absinteeism. The trade union had agreed to this procedure, which involved taking the empoyee through various phases. If absinteeism reached a certain level, it was regarded as a failure by the employee to meet the performance standard set by the company and the employee's services could be terminated.
On the evidence,the employee had taken 52 days sick leave over 2 years. As the employee had been taken through the SACP, the presiding commissioner found that the level of absinteeism was unacceptable. The commissioner found that the employee had failed to meet a reasonable performance standard set by the company even though he had been given edequate opportunity to improve his attendance record.
The problem for the company in this case, however, was that the SACP did not apply to incidents of absence due to chronic illness. It was established at the arbitration hearing that the employee's absences were due to ill health caused by his HIV-positive status. This information did not emerge during the process that led to his dismissal. The company's position was that it was the employee's right not to divulge the type of illness he was suffering from.
The arbitrator found that the company had not investigated the degree and nature of the employee's alleged incapacity - nor had it considered any alternatives short of dismissing the employee, as required by the relevant Code of Good Practise. He concluded that an incorrect procedure had been followed and that the dismisal had been unfair. The employee was reinstated with back pay.
Conclusion: Even where there is an agreed procedure to curb absinteeism, the employer has to consider whether that procedure is appropriate in the circumstances. There are no short-cuts.
