ABUSE OF SICK LEAVE

Establish clear rules!

Pattern of absences

What is really important when dealing with sick leave abuse is to establish a pattern of absences. Most employees who abuse sick leave do so before or after weekends, public holidays and paydays. This is one of the indications of a troubled employee, so it is important to establish the root cause of the absences.

I recently received a call from a client asking what he should do in respect of an employee who had been off work on Monday and Tuesday and had not produced a sick certificate. He suspected that the employee had not been ill and had simply taken a nice long weekend.

Section 23 (1) of the Basic Conditions of Employment Act states:

An employer is not required to pay an employee in terms of section 22 (sick leave entitlement) if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

This means that as long as the employee is not absent for more than two consecutive days or on more than two occasions in an eight-week period, the employee is entitled to sick leave and must be paid.

As anyone who has been in business knows, this leaves the employer vulnerable to sick leave abuse by employees. So, what should the employer do?

Establish clear disciplinary rules

First of all, it is important to set out clear disciplinary rules regarding phoning in or getting a message to the employer if an employee is unable to come to work.

The second is to require employees to attend a medical practitioner and produce a valid sick certificate if they are off work before or after a weekend or public holiday. (Note Section 23 states ‘consecutive days’ therefore if a 5-day worker is off on a Monday or Friday that will mean he or she has been off work for more than 2-consecutive days. Without a certificate such absence does not qualify for sick leave pay and the employee may be subject to disciplinary action.) Once such a rule has been established and made known to employees, failure to produce a sick certificate constitutes a breach of the rule and employees may be disciplined for it.

The enforcement of a rule regarding employees phoning in if they are absent is also important. Even if an employee presents a valid sick certificate, the employee can be disciplined for failure to notify the employer of his or her absence. If the employee has been warned before and has a history of absences, this breach of the employer’s rule could warrant dismissal (in spite of the employee producing a valid sick certificate).

An example of disciplinary rules covering absences is as follows:-

ABSENCE FROM WORK/SICK LEAVE

Should an employee be unable to come to work, the onus is on the employee to provide proof for the reasons for absence. In such event, the employee is required to notify his manager by telephone or by written text message explaining the reasons for the absence and the likely date of return to work.

In order that arrangements for cover can be made, the message must be received within one hour of the start of the employee’s scheduled shift. The onus is also on the employee to ensure that management is notified of absence. It is not sufficient to pass a verbal message through some other person.

LEVEL 1 (Corrective measures will be taken)

Should an employee be off work due to illness for more than two consecutive working days, or on a day before or after a weekend or public holiday, or where the employee is off work due to illness on two occasions in an eight-week period, the employee is required to attend a medical practitioner for examination and obtain a medical certificate stating the dates that the employee will be off work and the nature of the employee’s incapacity.

Medical certificates issued after the period of illness or based only on the word of the employee (i.e. this patient says that ………..), will not be accepted by the Company.

Should an employee be absent for five (5) or more days without good reason and without notifying the Company, this shall be deemed to be a major transgression which may result in dismissal.

LEVEL 2 (The absence will be subject to a formal investigation and possibly a disciplinary enquiry).

Employees who are frequently absent through illness may be liable for dismissal on the grounds of incapacity to perform the job. Such employees may be required to produce a medical certificate for absences of one or two days.

LEVEL 1. (Corrective measures will be taken)

No employee shall tamper with nor alter any medical certificate.

LEVEL 2 (The incident will result in a disciplinary enquiry and probably dismissal.)

Pattern of absences

Debt

Employee debt is behind a lot of absenteeism. Employees who do not manage their personal finances properly often make unwise purchases, especially non-essential goods on Hire Purchase. They later find that they are unable to make their payments which can result in the goods being repossessed. Worse, they may borrow money from money lenders (Mashonisa) in order to make a payment. These people charge exorbitant interest rates and often resort to violence when repayments are not made on time.

This can leave the employee living in fear for their life and they will absent themselves in order to avoid the money lender.

If you are interested, WWFSA* has a product which can help in this area. *https://wwfsa.org

Return-to-work Interview

A practice that is worth implementing is the Return-to-work Interview. EVERY time an employee is off work, they must be interviewed to establish:

(a) that they are fit for work;

(b) the reason for their absence; and

Download published version

ABUSE OF SICK LEAVE

Establish clear rules!

Our team have worked with these companies