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

APPLICABLE LEGISLATION 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

PRINCIPLES

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

APPROVED ABSENCE

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

APPROVED ABSENCE 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

ABUSE OF SICK 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

ABUSE OF SICK 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

INCAPACITY - ILL HEALTH 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

TEMPORARY INCAPACITY

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

PERMANENT INCAPACITY

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

PROCESS TO DETERMINE INCAPACITY

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

PROCESS TO DETERMINE INCAPACITY

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

PROCESS TO DETERMINE INCAPACITY 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

PROCESS TO DETERMINE INCAPACITY

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

What now? 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

INJURY ON DUTY 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

INCAPACITY – POOR PERFORMANCE 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

INCAPACITY – POOR PERFORMANCE

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

CASE LAW

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?