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Thread: New employee has cancer - help!

  1. #1
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    New employee has cancer - help!

    Just need to get my ducks in a row regarding sick leave.

    I have a new staff member that has been with me for 4 months (3 month contract, now permanent).

    2 weeks ago she asked to borrow money for an preventative operation (cancer) - money is extremely tight at the moment but once I heard it was cancer I said go ahead and book and I will put it on my credit card - she can pay it back (R4500)over a year or so. She reckoned she would be back 1 week after the op. It's a government hospital and as she works (shop assistant, low pay) it still seems they charge.
    The op is scheduled for November.

    Last week the doctor phoned, and it's been confirmed that she has cancer (really sad, she is only 21). My advice was to move back to her family for two reasons...the chemo/treatment would be free if she was unemployed also she would have the support of her parents.

    As said, for me money is tight, for the first time ever I have a couple of accounts frozen - It's not all bad as my 6 good months start in december which is just around the corner.

    If she decides to stay, what are my legal rights? If she takes 3 months sick - do i have to pay? Is there a limit on how much sick leave a person can take?

    It sounds pretty heartless I know ( and I can assure you I am not) - but would like to know where I stand.

    Lastly if she leaves could she claim UIF?

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    found this pretty help full - won't follow this to the letter as it's way too harsh for her situation.

    Basic Guide to Sick Leave
    by Zopedol — last modified 2008-05-30 14:16
    Workers may take the number of days they would normally work in a 6-week period for sick leave on full pay in a 3-year period. Employers may insist on proof of illness before paying a worker for sick leave.ApplicationThe Basic Conditions of Employment Act applies to all employers and workers, but not -· members of the -o National Defence Force,o National Intelligence Agency, oro South African Secret Service; or· unpaid volunteers working for charity.The section of the Act that regulate working hours does not apply to:· workers in senior management· sales staff who travel and regulate their own working hours· workers who work less than 24 hours in a month· workers who earn more than R115 572 per year· workers engaged in emergency work are excluded from certain provisions.See· Basic Conditions of Employment Act Applies to all employers and workers and regulates leave, working hours, employment contracts, deductions, pay slips, and terminationApplication for Sick LeaveThe provisions for sick leave do not apply to -· workers who work less than 24 hours a month· workers who receive compensation for an occupational injury or disease· leave over and above that provided for by the Act.Number of sick daysWorkers may take the number of days they would normally work in a 6-week period for sick leave on full pay in a 3-year period. However, during the first 6 months of employment, workers are only entitled to 1 day of paid sick leave for every 26 days worked.Based on Legislation in Section 22, of the Basic Conditions of Employment ActProof of IllnessAn employer may require a medical certificate before paying workers who are absent for more than 2 consecutive days, or who are often absent (more than twice in an 8-week period).Based on Legislation in Section 23, of the Basic Conditions of Employment Act

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    Diamond Member tec0's Avatar
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    Basic Conditions of Employment Act, 1997 (No. 75 of 1997)
    Chapter Three: Leave
    22. Sick leave


    1) In this Chapter, "sick leave cycle" means the period of 36 months' employment with the same employer immediately following--

    a) an employee's commencement of employment; or

    b) the completion of that employee's prior sick leave cycle.

    2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

    3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked.

    4) During an employee's first sick leave cycle, an employer may reduce the employee's entitlement to sick leave in terms of subsection (2) by the number of days sick leave taken in terms of subsection (3).

    5) Subject to section 23, an employer must pay an employee for a day's sick leave--

    a) the wage the employee would ordinarily have received for work on that day; and

    b) on the employee's usual pay day.


    6) An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this section if--

    a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and

    b) the employee's entitlement to pay--

    i) for any day's sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and

    ii) for sick leave over the sick leave cycle is at least equivalent to the employee's entitlement in terms of subsection (2).
    The above is your basics towards sick leave. That said I am sorry to say that you will probably get the sharp end of a stick if you try to dismiss an employee on illness. That said I would rather go for a less popular approach.

    IF "please note the IF" you wish to dismiss this employee "cold as it may sound" do so via admin and get some legal advice. As far as I can remember you can use poor work performance as a reason for dismissal.

    It is a bit underhanded and I honestly don't recommend it. But if it becomes your only option it is your only option I am sorry to say.

    Good luck...
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    Site Caretaker Dave A's Avatar
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    This is pretty important given the new employee status:
    However, during the first 6 months of employment, workers are only entitled to 1 day of paid sick leave for every 26 days worked.
    The trouble with opportunity is it normally comes dressed up as work.

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    Diamond Member tec0's Avatar
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    3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked.
    Yes however sometimes it is worth it to give the employee a bit more especially with this kind of illness. Firstly it shows compassion, secondly "if properly documented" it shows that you acted within reason towards the employee" and that "may" "please note the may" help if you need to take other actions.

    In reality it is times like this I wish medical services could just be free honestly... This person shouldn't be working. There treatment and welfare should be the responsibility of our government.
    peace is a state of mind
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    Diamond Member adrianh's Avatar
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    Send Sterne.Law a PM - I am sure that he will give you a factual legal answer.
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    cheers for the help guys. she is going in for an op and will probably be off for around a week - have no problem giving that to her and if needed will happily give 2 weeks. I just had a bit of a nightmare thinking of 3 - 4 months sick leave.

    As said, if she has to pay for this she might as well resign - would be way cheaper and less stressful. Depending on the reason i was wondering if she would get UIF?

    Besides that:

    On Friday went to check up on the shop - seeing the profit percentage was quite low I was checking on sales. Absolutly furious to find out that they had been handing out thier staff discount (a huge 37%, my cost) to some friends. This is a shop that has just started, making a small loss and is costing me money. This is the 3rd quite serious incident and was very close to firing them both.

    I think I need to stop trying be my staff's "friend/understanding boss" - time to be just " the boss". I have always had this idea of sharing the profits with my staff - and it works brilliantly in one of my shops.

    Time to move online...

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    Diamond Member AndyD's Avatar
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    Quote Originally Posted by Pap_sak View Post
    Absolutly furious to find out that they had been handing out thier staff discount (a huge 37%, my cost) to some friends.
    That's basically theft. I would go through the disciplinary proceedure and deduct the shortfall from their wages.
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    Diamond Member tec0's Avatar
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    I stand to be corrected but isn't "deducting" money from someone's pay illegal?

    I remember about 3 years ago now that employees in a motor work shop were forced to give up 15% of their pay because someone stole tools. So the owner forced everyone to give up 15% of their pay AND continued to deduct the 15% even after the tools where paid for in full.

    One of the mechanics got sick of it and consulted a lawyer. After about two months the owner got a summons. If I remember correctly he had to pay the money back. Agreed the CCMA would have been cheaper and all that but the mechanic in question did get his money back.

    As I understand it you must get the consent "written consent" of the employee to do so.
    peace is a state of mind
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    Diamond Member Justloadit's Avatar
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    What the LRA and CCMA and unions has brought into the mix, is this total irresponsible, inefficient, careless attitude from employees - because "we can not get fired", we need a "hearing", and I must get three warnings for the same thing before I can get overly concerned that something might happen to me, and, I probably will get 6 months of wages anyway. The employee, knowing that the employer is short of cash, and probably does not have the time to spend at the CCMA, means that I can carry on regardless with no consequences for my actions.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
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