Curbing Abuse of the Sick Leave System

IntroductionCopyright Amendment Bill

It is no secret that the abuse of the Sick Leave System by Employees has had devastating economic effects and management challenges on companies. Without Employees being present at work, many businesses cannot function, and in those instances, Employers run at a loss.

Employees might be under the impression that in instances where they present a medical certificate for a period of absence at work, the Employer is supposed to accept it and not investigate its authenticity. However, when hours are lost as a result of absenteeism from work, it can be financially crippling for a company who is obligated to remunerate Employees while simultaneously not making any revenue during those days of absence.

Overview

In accordance with the Basic Conditions of Employment Act (BCEA), specifically Section 22 (1) through 22(4), an employee who works 5 (five) days a week is entitled to 30 days of paid sick leave in a 36-month cycle. If an employee exhausts his/her sick leave days prior to the expiration of the cycle, any sick leave taken will be unpaid sick leave.

In most frequent cases, there seems to be a pattern by Employees of taking sick leave on a Monday or Friday. The Employer is entitled to ask the doctor to draft an affidavit as a sworn document that says “I saw this person and this person has a medical condition”. The courts have gone even further and said if the Employer doubts the affidavit, the doctor has to present him/ herself to explain the information.”

Furthermore, this duty stretches also to Traditional Healers which are consulted by Employees when they have taken sick leave. There only catch is that the Traditional Healer has to be a registered member of the Medical Council.

Mgobhozi v Naidoo NO & Others

The Labour Appeal Court held that Medical certificates constitute hearsay evidence. It noted that for a medical certificate to be admissible, it must be accompanied by affidavits setting out the evidence that would have been led at a trial. Since hearsay constitutes evidence in terms of the Evidence Amendment Act, therefore the evidence is given in writing by a person other than the deponent to an affidavit also constitutes hearsay evidence.

Therefore, medical certificates constitute hearsay evidence unless accompanied by an affidavit by the Medical Practitioner or the Traditional Healer. If the Employer is dubious as to the veracity of the affidavits, the Doctor has to present him/herself to confirm the information.

Conclusion

The abuse of sick leave has introduced challenges which threaten the financial stability of many companies across the country. Employees are therefore warned not to abuse the sick leave system, because if the Employer can prove that the Employee was not sick, disciplinary steps may be taken against the Employee. There is no duty by Employers to accept the medical certificate on face value.

This demonstrates that abuse of the sick leave system has created a necessity for Employers to become more vigilant and call for enquiries when the need arises. This, in turn, burdens the Company with added administration and ultimately negatively impacts their ability to generate income. Employees trying to abuse this system will be held liable for misconduct. However, it is crucial that Employers do not risk breaching the Doctor and patient confidentiality while trying to ascertain the veracity of the medical certificate. Rather, there is a duty on the Employer to act with caution to protect the company and livelihood of the Employee.

For Expert Legal Advice on any Labour related issues, contact SchoemanLaw Inc today.

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