HOW TO MANAGE INCAPACITY AND UNAUTHORISED ABSENCE IN THE WORKPLACE IMASA CONFERENCE: 18 OCTOBER 2018 Annalene de Beer
INDEX Applicable Legislation Principles Approved absence Abuse of sick leave Incapacity Ill Health Temporary Incapacity Permanent Incapacity Injury on Duty Poor performance Case Law
AP APPL PLIC ICAB ABLE LE LE LEGI GISL SLATIO TION Labour Relations Act Confirm basis of employment contract Misconduct provisions Chapter 8 Basic Conditions Of Employment Act Work hours Types of Leave Local Government Systems Act Code of Conduct for employees Main Collective Agreement Work Hours Types of Leave Disciplinary code
PR PRINC INCIPL IPLES ES Employee paid for work delivered At workplace Performing functions and tasks assigned to the post appointed in If not at work: Approved absence Annual Leave, Sick Leave, Family Responsibility Leave, Special Leave Paid leave/unpaid leave Unauthorised absence Not approved Not known to employer
AP APPR PROVED VED AB ABSENCE ENCE Leave Annual leave controlled if properly managed 24/27 work days paid per annual leave cycle Can only be accumulate to 48 days Yearly check on 48 days through leave provision in annual financial statements Must ensure leave are captured otherwise can lead to days taken and not recorded Family Responsibility Leave 5 workdays paid a calendar year Ensure proof of reason for absenteeism for every day Must be recorded(captured) to be controlled
AP APPR PROVED VED AB ABSENCE ENCE Special Leave Various types Work days – paid Controlled as proof needed for every incident Paid Sick Leave 80 days in 3 year cycle Paid 3 times in 8 weeks absent for up to 2 days without any sick certificate Longer than 2 days per event must provide sick certificate If controlled and captured
AB ABUSE E OF OF SIC ICK K LE LEAVE Employees use 2 days of sick leave per month Without sick certificate And without providing reason for illness on sick certificate Dr will only withheld prognoses if employee insists Sick certificate information confidential Employer has the right to know the prognoses Employee entitled to sick leave if not able to perform duties due to illness Employer must be able to determine if the sick certificate is legitimate Contact dr to find out if legitimate practice
AB ABUSE E OF OF SIC ICK K LE LEAVE Request the prognoses If refuse May instruct employee to go to employer dr on employer cost If regularly ill for a day or two without a proper reason or certificate Request certificate for every time employee is not at work. To ensure proper management Ensure that work day is accounted for Electronic system the best Proper management reports Provided that managed well Line Management must be on – board Monitor sick leave to ensure that employees know that abuse will be picked up
IN INCAP APACIT CITY - IL ILL L HE HEAL ALTH H If unable to perform functions Temporary Permanently Temporary How long Partly Completely Permanently Partly Completely No process determined in legislation of what process must look like
TEM EMPORA PORARY Y IN INCAP CAPACIT CITY Y Partly of Completely % of incapacity How Long Can it be expected of a reasonable employer to keep post open for the period What is possibility of total recovery Recovery to such extend that can resume full duties No such thing as “ Light Duty” Unless post can be adjusted to accommodate light duty Light duty means not fulfilling the functions of the post appointed in Management must take action as soon as possible
PE PERM RMANENT ANENT IN INCAP APACIT CITY Y Partly % of incapacity Completely If partly incapacitated % and what capacity To determine how to change post to accommodate incapacity Or what other post can be offered as an alternative If possible Not expected of employer to create a new posts if not in line with what employer’s core functions are
PROC OCESS ESS TO O DE DETERMINE ERMINE INCAP CAPACIT CITY Must be based on medical evidence Either provided by Employee Or by Employer If employee is on sick leave for more than 14 days for same or similar illness may indicate a problem Line management must pick up early Send to dr on employer cost and request a report from dr Indicating temporary of permanent and % of incapacity When report is available discuss the impact of report Current post/alternative offer
PROC OCESS ESS TO O DE DETERMINE ERMINE INCAP CAPACIT CITY When deciding to start process Notice of start of process Not a disciplinary process “ no fault” Entitled to representation Shop steward/fellow employee/exceptional situation legal representation First session set scene and agree on process especially medical evidence to be obtained Second session to table medical report/ request any further evidence/discuss possible options Third session discuss alternatives and try to reach agreement
PROC OCESS ESS TO O DE DETERMINE ERMINE INCAP CAPACIT CITY Adjust current post? If not possible What alternatives? Salary to be adjusted with post adjustment/alternative offer Termination only when no alternative offer can be made or post can not be adjusted Paid sick leave may run out Important to start early If no paid sick leave – unpaid sick leave Pay contribution to pension fund and medical aid If employee pay his/her contribution Try to negotiate a lower salary for longer period of paid sick leave Provisions in the Collective agreement to be taken into account
PROC OCESS ESS TO O DE DETERMINE ERMINE INCAP CAPACIT CITY Parallel process by pension fund Inform pension fund when employer starts with process/employee indicates through medical evidence that may be incapacitated Employer process NOT dependant on Pension fund process Will provide pension fund with all evidence and decisions that formed part of the process
Wh What at no now? w? Dismissal for ill health Normally on notice (only paid if still sick leave left) If no other alternative exists If current position cannot be adjusted Last day of service – date of pension fund decision Irrespective of what decision is Payment of contributions therefore important Will receive pension payments if fund also decides that be boarded If fund does not agree Dismissed but not pension fund Process to appeal pension fund decision – employee process
IN INJU JURY Y ON ON DU DUTY Y Incapacity may follow IOD Temporary/permanent Partly/fully % of incapacity Time for recovery Sick Leave not at play when IOD Paid for period by employer Process exactly the same as when not IOD Except bigger responsibility on employer to accommodate Unlikely to be an unpaid period because sick leave can be used after IOD leave
INCAP CAPACIT CITY Y – POO OOR PER ERFORMANCE ORMANCE More challenging to manage Involves a high degree of line management involvement Starts with a good JD and communication around what is expected of an employee Employee not performing functions as required Not due to some physical incapacity May also be due to continuous absenteeism for various reasons Abnormal amount of some form of leave may be addressed in this manner Starts less formal than ill health process Coaching/mentoring/training Time to improve Make sure is recorded (in writing) from first session where employee informed of non-satisfactory performance
INCAP CAPACIT CITY Y – POO OOR PER ERFORMANCE ORMANCE If no improvement – formal hearing Careful not to be “disciplinary process” Allowed representation Provide all information of process followed to date Ensure well documented Give last opportunity to improve Indicate what the consequences will be if no improvement If no improvement: Dismissal Normally on notice
CASE LAW SAMWU OBO DAMONS AND CITY OF CAPE TOWN IOD Permanently injured BOKWA attorneys vs CCMA and others Poor work Performance Midas Group Komatipoort vs Numsa and others Poor performance Parmalat SA(PTY) LTD vs CCMA and 1 other Incapacity – reasonable alternative Parexel International (PTY) LTD s Chakane, TNO and others Incapacity to be base don objective facts
CAS ASE E LA LAW W BOSAL Africa (PTY) LTD vs NUMSA and others Dismissal Poor attendance – regular absence Danielskuil steenwerke vs David Bobbejaan N O and others Dismissed for ill health incapacity TVET SA (PTY) TLD vs Lisa Dorothy Swanepoel and others Ill Health incapacity dismissal
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