Address the problem pro-actively
We regularly receive calls from clients asking what to do in respect of employees who have been off work on a Monday or Friday and have not produced a sick certificate. Most suspect that their employees had not been ill and but had simply taken a 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.
The two consecutive day’s provision is important. If we look at the provisions for annual leave, the BCEA S20 (2) states:
An employer must grant an employee at least 21 consecutive days annual leave on full remuneration in respect of each leave cycle.
In other words, three weeks annual leave or, put differently, 15 working days leave for a 5 day worker and 18 working days leave for a 6 day worker are prescribed in the Act.
Clearly, on this definition, ‘consecutive days’ is interpreted to mean that it includes weekends. This means that if an employee is off work on a Monday or Friday, the Act requires him to produce a medical certificate to cover his or her absence. Failure to produce such a certificate means that the employer is not obliged to pay the employee for the time off and the employee may be subject to disciplinary action.
According to Absolv Software Technologies, the direct cost of sick absence is estimated to cost South Africa an estimated R34.1 billion. The indirect cost of such absence (lost production and sales) is estimated at R68.2 billion making the total cost R102.3 billion which is almost 3% of GDP. This is a serious problem!
So what should employers do?
Establish clear disciplinary rules
First of all it is important to set out clear disciplinary rules regarding notification. Employees should be required to notify their manager (or a designated person) at least an hour before the start of their shift if they are unable to come into work. This is necessary in order that a replacement can be arranged or contingency plans can be made to ensure that the employee’s work gets done.
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. 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.
A ‘Return-to-work’ interview is also critical as it discourages ‘chancers’ if they know that they are going to be questioned on their absence when they return to work. These interviews also ensure that appropriate counselling and if necessary, disciplinary action is taken.
The enforcement of a rule regarding notification of absence is critical. 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 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 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 at least one hour before 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 possibly dismissal)
Pattern of behaviour
What is really important when dealing with sick leave abuse is to look for a pattern of absences. Most employees who abuse sick leave do so before or after weekends, public holidays and paydays. They also tend to visit different doctors, claim different maladies and take one or two days’ sick leave.
It is therefore important to analyse sick leave to determine the average number of days absence, the number of doctors visited and the number of diagnosis. It is also important to identify and closely monitor the employees who take the most sick leave. It is also important to get to the root cause of their behaviour as absence and sick leave abuse is usually accompanied by the following symptoms:
- Poor timekeeping – late in the mornings and/or after lunch, unexplained absences from workstation.
- Tired / ‘lazy’ – lacks energy, constantly tired and unenthusiastic.
- Inattentiveness – constantly pre-occupied, forgets things, unable to concentrate on work and/or during training sessions.
- Poor or deteriorating performance – mistakes due to inattentiveness or forgetfulness. Failure to meet deadlines. Disinterested and unenthusiastic about work matters.
- Sick leave – excessive sick leave, usually for 1 or 2 days. Sick after weekends, rest and pay days. Dubious certificates from different doctors (gastro-enteritis, lumbago, etc.)
- Behaviour patterns – mood swings and/or sudden changes in behaviour including:-
- irritable and/or temper tantrums;
- over-reacts to real or imagined criticism;
- accidents, especially afternoons or after breaks;
- untruthful, brags or overstates accomplishments;
- avoiding behaviour, will not discuss problems.
- Appearance – deterioration in general appearance and personal hygiene.
- Financial difficulties – garnishee orders; excessive requests for cash advances or loans; problems with loan sharks.
- Family and personal relationship problems – substance abuse, physical abuse and financial difficulties usually lead to some form of relationship problem.
Training for Managers & Supervisors
B&A’s 2 day Managing Poor Performance & Incapacity training course equips managers and supervisors with the knowledge and skills to be able to deal with troubled employees, to conduct the necessary crucial conversations and take the necessary action to deal with sick leave abuse where it occurs.
Absolv Software Technologies have developed a new Cloud based software system to help employers address the absence problem. This includes a USSD cellphone notification system plus comprehensive real time reporting to ensure that absence does not result in lost production and costs are kept to a minimum.
Bruniquel & Associates (Pty) Ltd
For more information please click here.