When is it due?

Is it paid or unpaid leave?

If paid sick leave is not due, there are two options:

1. the employer can process it as unpaid leave;  or
2. process it as paid leave and deduct it from the employee’s annual leave.

An employer is not required to pay an employee in terms of Section 22 of the BCEA if the employee has no available sick leave days, does not provide a valid medical certificate when required to do so, or is absent without the employer’s permission.

Abusing sick leave

In general, if a valid medical certificate is provided, the absence should be dealt with as a form of incapacity as the employee is inherently unable to meet fixed performance standards due to ill health.  When the employer however suspects abuse of sick leave, it is important to follow a fair process to investigate a claim of misconduct to produce evidence.

Ask these questions to determine if the employee’s behaviour amounts to misconduct or incapacity:

• Is the employee taking a certain number of sick leave days in a short period of time?
• Is the employee’s sick leave exhausted?
• Do the dates of the sick leave suggest a pattern, i.e. is the employee typically sick on Mondays and Fridays, before or after a public holiday, or after payday?
• Has the employee submitted valid medical certificates?
• Is there any evidence that suggests that there may be other reasons for the employee’s absences (e.g. domestic violence, depression)?

Consider these two procedures in serious cases of incapacity or misconduct:

• Incapacity procedure:  The frequently absent employee is genuinely suffering from ill health and could potentially be dismissed for incapacity.  Have the employee undergo a medical investigation to determine if the employee is capable of performing their duties and meeting the employer’s fixed operational standard.
• Disciplinary procedure:  The medical investigation shows that the employee has no severe health problems.  The employer is now alerted to investigate sick leave absences in future, to determine if the employee was really sick or should be charged with misconduct lead by a medical investigation to proceed with a disciplinary hearing.

It is important that employers deal with issues in the workplace as quickly and effectively as possible, while taking care to act objectively and consistently.  By being proactive, the employer can greatly contribute towards the business’s sustainability and profitability and ensure a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive to growth.

2 most common annexures:

Restraint of trade agreement

• What: What are the specific tasks, aptitude, work or field in which a former employee cannot become involved.
• Where: Refers to the geographical area.  Take note that there should be a connection with the specific area.
• Time: Refers to the period after the employee has left employment, during which the restraint of trade will be valid. This must be a reasonable period of time.

Confidentiality agreement

by Abrie Bronkhorst

Several time wasters in the workplace are counterproductive. Employers should take note of the following:

Absenteeism

Absenteeism and tardiness are two of the most significant time wasters in the workplace. Apart from the employee who does not provide services according to agreed hours, absence has far-reaching consequences regarding colleagues’ service delivery. For example, a colleague has to stand in for the absent employee and cannot focus on his own activities, or the progress of a project or task is slowed down because the absent employee’s input and contribution are awaited.

Apart from not being at work, absenteeism also means:

• Arriving late (it is still absent as long as the employee is not at work)
• Leaving early
• Unauthorised breaks
• Extended breaks (smoke, toilet, lunch, tea, etc.)

Extended smoke breaks:

Extended tea/coffee breaks:

• Feigned illness
• Other unexplained absences from the workstation or the premises.

Lack of attention

Cell phone distractions

by Anneline Scriven

Always follow the golden rules of applying discipline and ensure that the consequences of a CCMA case do not mean the end of your business:

1. Have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules. Employers must have an up-to-date disciplinary code that lists offences with the appropriate sanctions to use when rules and procedures are not followed.

• Apply progressive discipline according to the offence’s seriousness and keep a detailed record thereof.

• Remember, the CCMA mainly looks at two elements when an employee refers a dispute:
• Substantive fairness – a valid and fair reason for the sanction imposed. The employer must be able to prove the following on a balance of probabilities:
• Was there a rule in the workplace?
• Was the rule reasonable?
• Was the employee aware of the rule?
• Did the employee break the rule?
• Did the employer apply progressive discipline (consultation and warnings, according to the offence)?
• Did the employer apply discipline consistently?
• Did the misconduct justify the sanction applied?

• Procedural fairness – the required legal procedure before imposing a sanction. An employer cannot dismiss an employee under any circumstances, even with a valid reason, without holding a disciplinary hearing to ensure that a fair procedure is followed. The employer must be able to prove the following:
• A disciplinary hearing was held;
• The employee was notified in writing at least 48 hours (excluding weekends and public holidays) prior to the hearing to prepare for the hearing;
• All documentation (notice to attend the hearing and a procedural application form) contained all the necessary information required by legislation;
• The chairperson was informed and unbiased;
• The accused employee was given every chance to prepare for and defend his/her case;
• Aggravating and mitigating circumstances were taken into account;
• The outcome of the dismissal was based on the facts presented during the hearing;
• The sanction was appropriate according to the offence;
• The hearing and outcome were recorded in writing by the chairperson;
• The employee received the outcome in writing.

Labour risk is a huge business risk. To ensure the sustainability and profitability of your business, labour risk needs to be managed proactively, as not following the correct procedures can lead to dire consequences with a substantial financial impact.

by Abrie Bronkhorst

Harassment

• following, watching, pursuing or accosting the victim, or loitering outside of or near the building or place where the victim resides, works, carries on business, studies or happens to be;
• engaging in unsolicited verbal, electronic or any other communication aimed at the victim whether or not conversation ensues;
• sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the victim or leaving it where it will be found by, given to  or brought to the attention of the victim;
• any kind of sexual behaviour;
• unilateral work changes;
• unrealistic workplace conditions or performance demands.

Intimidation

• yelling, cursing or swearing;
• blaming an individual for the mistakes of others;
• ridiculing through unsubstantiated criticism;
• attacks on the victim’s self-esteem.

The result of harassment and intimidation

• Loss of productivity due to emotional trauma of victims and distracted employees due to a loss of concentration. A harmonious working environment is vital for productivity.
• Absenteeism due to fear, stress and emotional trauma. Low self-confidence and humiliation can also lead or contribute to other issues such as alcohol or drug abuse.
• Misconduct due to the disturbance of workplace relationships. Fear, stress, intolerance, anger and paranoia can lead to other misconduct such as fighting, assault, further intimidation, unauthorised possession of weapons, damages to property, insubordination, negligence, poor work performance, sleeping on duty, etc.

Be proactive as the employer