HOW TO MANAGE INCAPACITY AND UNAUTHORISED ABSENCE IN THE WORKPLACE - - PowerPoint PPT Presentation

IMASA CONFERENCE: 18 OCTOBER 2018 Annalene de Beer

HOW TO MANAGE INCAPACITY AND UNAUTHORISED ABSENCE IN THE WORKPLACE

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

• r 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

THANK YOU QUESTIONS?