A man visited a Pizza restaurant which was offering an “Eat as much as you can” special for R40. He had tried 70% of all the various pizza’s on the menu until he was full. Although he was not able to take another bite, he had not yet tried the house “specials”. He approached the manager to ask if he could have a “doggy-bag” to take home with him. The manager replied that it was not allowed as it was an “Eat as much as you can” special offer for those dining in the restaurant. The man replied that he was entitled to take home pizza as he had paid his R40 and if he did not take it, he would lose out. The manager asked the man if he had eaten as much as he can? The man responded “yes”. “Then”, said the manager, “you have not lost anything!”

Employees often believe that they are entitled to sick leave and if they do not take their allotted sick leave then they will lose it. They fail to understand that if they come to work they get paid and therefore there is no need to be on sick leave to be paid. They will lose nothing if they don’t utilize their sick leave. This perception comes from the view that sick leave is an entitlement like annual leave. Sick leave is not to be confused with annual leave. Annual leave is mandatory, i.e. it must be taken, whilst sick leave does not have to be taken.

It is a social protectionist provision. It has been enacted to protect employees from not losing pay for incidents of genuine illness when they cannot comply with their common law duty and contractual obligation to place their labour at the disposal of the employer. In common law, a failure to report for work would amount to a breach of a material term of the contract and warrant instant dismissal. Our society has progressed to recognize that there may be good and valid reasons why an employee cannot report for work. One such reason could be genuine illness resulting in an inability to adhere to the contract. Having recognized that there are valid reasons for absence, the legislature has enacted protection for these occasions, such as sick leave and family responsibility leave, without the fear of losing pay. This protection is however limited to a number of days in a year or a 3-year cycle.

However, employees seem to believe that sick leave is a savings plan with a limited duration – to be used “when I want to or I will lose it” – when in fact it is more like an “insurance” to cover potential loss of pay. In the same vein, it would be absurd for a female employee to become pregnant just because she is afraid that she may not be able to make use of her maternity leave.

This approach of employees is symptomatic of an absence culture within an organization. Even annual leave cannot be taken by employees as and when they want to. It is granted at the discretion of the employer unless the employee is about to forfeit such leave. If annual leave is at the discretion of the employer, why would sick leave be at the discretion of the employee? It is not and should not be allowed to be used as “substitute” annual leave authorized by a doctor or not.

Willful absence disguised as sick leave should be addressed sternly and within the provisions of the law and common law through disciplinary action. Even the Basic Conditions of Employment Act foresees abuse of sick leave and instituted the eight-week rule which provides that if employees are absent without a medical certificate for more than two occasions in an eight-week period, then the employer may insist on the employee producing a medical certificate on every occasion of absence for reasons of illness thereafter.

Various Main Agreements of bargaining councils have also foreseen the abuse of sick leave and have provisions regulating when a medical certificate must be produced as proof of sick leave, e.g. before or after a weekend or a public holiday.

It is then a short hop to companies introducing their own norms of what is acceptable sick absenteeism and what is not. The eight-week rule can be used as a basis for extending norms to 16 weeks, 24 weeks, 32 weeks, etc. Breach of these norms would result in counseling sessions and eventually to termination of service with notice on the basis that the employee can no longer reliably offer his/her services in terms of the contract and has become unable to comply with the Company standards. This termination will thus be for incapacity.

To view the sick leave provision in the Act in any other way, would be to accept that each employee necessarily falls ill 30 days in a three-year cycle and that is simply ridiculous.

Even when employees have not exceeded their 30 days in a 3-year cycle but their absence shows unacceptable trends relating to the duration of their absence, the timing of their absence or the frequency of their absence, action can be taken against them. After following a fair procedure in terms of their incapacity and inability to meet the Company norms, this could also result in the termination of their services.

Sick leave is not “Eat as much as you can” as employees invariably think. Neither is it a “savings plan”. It is available as an “insurance” to employees for when it is genuinely required so that they do not forfeit their pay. And we all know that to make false insurance claims amounts to fraud. Why then should false claims of illness not be treated with similar harshness?

Contact your local LabourNet consultant to assist you with a Control of Absenteeism Policy.

For more information on the above topic, please contact LabourNet Eastern Cape at 041-373 299.

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Email us: Phikolomzi Malamlela at pmalamlela@labournet.com or Robert Niemand at robertn@labournet.com

Visit our website at www.labournet.com

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