[Question] Warnings and Leave

[brown]

I have an employee who came back from Maternity leave in September, however the child has been having problems ans she's been taking excessive leave due to that. Does that constitute abuse of leave which can lead to a written warning, or can we use the leave as unpaid?

[tec0]

Does she have a doctor’s note? If the child is ill then she has a very well protected right to tend to her child. Especially if she has a doctor’s note that is up to date and valid.

If she has existing leave then she is entitled to it, but if she has no more leave then yes you can start with “unpaid leave” to tend to her child.

But if you have proof that she is indeed taking leave for no real reason and her child is not really sick then that will qualify as abuse and a written warning needs to be implemented. However make sure that it is within in your company policy and regulations before you do something like that.

Otherwise it can lead to victimisation and that will be a can-of-worms you don’t really want to open. Also she must be made aware of the policy and regulation before you can give her a warning.

That is called a verbal warning. Second warning is a piece of paper stating company policy and regulations, she must sign for that and then you can give her, her first written warning.

Don’t miss that “piece of paper with company policy and regulations” bit because if she was not informed again a ugly can of worms...

good luck.

[adrianh]

How can one take excessive leave? (This may sound like a stupid question but its not.)

If I say you may take 20 days leave, and you take them, then that is not excessive.

Define "abuse of leave" - it is within her rights to utilize the leave that she is entitled to.

There are a specific number of days allocated per leave cycle / category, ie annual leave. sick leave etc. Each category is used up for a specific purpose and as far as I am cencerned, anything beyond that is unpaid.

Take the emotion out of the way you look at the matter and simply look at it in terms of the rights afforded to the employee by the labour relations act.

[brown]

Does she have a doctor’s note? If the child is ill then she has a very well protected right to tend to her child. Especially if she has a doctor’s note that is up to date and valid.

If she has existing leave then she is entitled to it, but if she has no more leave then yes you can start with “unpaid leave” to tend to her child.

Those are my sentiments too... The baby is still very small and complications are to be expected. I am tasked to write her a warning letter, but I feel it is to harsh a sentence. I can't ask her to choose between work and her child can I?

[brown]

How can one take excessive leave? (This may sound like a stupid question but its not.)

If I say you may take 20 days leave, and you take them, then that is not excessive.

Define "abuse of leave" - it is within her rights to utilize the leave that she is entitled to.

There are a specific number of days allocated per leave cycle / category, ie annual leave. sick leave etc. Each category is used up for a specific purpose and as far as I am cencerned, anything beyond that is unpaid.

Take the emotion out of the way you look at the matter and simply look at it in terms of the rights afforded to the employee by the labour relations act.

The problem is we have only 15 days leave, 10 of which is allocated to the shut-down period. She was on maternity leave for 4 months and no leave accrued to her during that period. Whilst I will treat the extra leave as unpaid, is it fair treatment to give her a warning based on the child being sick?

[adrianh]

I am tasked to write her a warning letter

For caring for her child...strange world we live in...I'm sure glad my wife doesn't work for your company...

I can't ask her to choose between work and her child can I?

If you were to ask this of my wife or I you would come off second best. That child will be with her for the rest of her life, your business won't.

This once again goes to prove that some businesses do not have the welfare of their employees at heart, yet you expect absolute loyalty towards the company. If I was her, and you gave me a warning letter, I would tell you to shove the letter and the job in your ear.

Some things in life are simply more important than others...the welfare of a baby / child comes before loyaly to a business.

[adrianh]

I do not believe that it is fair to give her a warning because her child is sick. A guy I worked with many years ago had a very rough time. His wife gave birth to twins but the one baby was deprived of oxygen during birth. The child fought for its life for a couple of days but survived. The baby was brain damaged and it took a lot of doing simply to keep the child alive. The medical aid refused to pay anything over R150K so they were totally stuffed. They needed to take a lot of leave and to find another R200K for hospital bills. Anyway, they were lucky because the company footed the rest of the bill and gave them time off. Now i'm not saying that you need to do this, but I am saying that $h1t does happen.

I have two girls and I'll never trade their wellbeing for anything. I don't care what happens they come first.

Look, I understand that she takes more leave than is "allowed" this does have an impact on small business (I have a small business and I have women working with me). I understand that one might feel that she is taking liberties (and maybe she is). I just think that one needs to be considerate.

[tec0]

It is true bad things will happen and people will do what needs to be done. A warning letter is a bit strong but I recommend that you make sure you are not violating any of her rights. Remember, company policy and regulation must state clearly that the employee will face warnings and dismissals for this kind of conduct.

Secondly you need to proof that she was in the wrong. As I said her right to care for her child is very well protected and if this woman takes action against you then things will get messy for both you and this woman.

Good luck...

[sterne.law@gmail.com]

Let us address the legal issues prior to moral or management issues.

Attending to a sick child falls under family responsibility leave. This is regulated by BCEA as to how many or company contract.
She cannot use her sick leave if she is not sick, i.e the child is sick.
She could make use of her annual leave, however I will presume that annual leave must be applied for prior to taking it in terms of company policy.
This should answer the issue of if the "leave" is paid or not.

Legally the company is not responsible for the family issues and has no duty to accomodate the employee, morally, and on a management perspective an employer should show some empathy and attempt to resolve the issue.

Absence of a frequent nature, even with medical certification can be addressed either in terms of misconduct or a ill health enquiry depending on the circumstances. This can be done, irrespective of the amount of sick leave taken. That is you can take ill health action even if the employee has not used all sick leave due.
Although it is the child that is sick perhaps using a similiar methodology will be of benefit in resolving the issue.
Obviously no one can predict when someone will be ill and therefore plan accordingly, but knowing that an employer will give me time off, paid or unpaid, to attend the doctor can go along way to building a relationship and minimizing absenteesim.
You could also look at allowing her a month off, as an example, unpaid. The nature of her job will determine if it is possible for you to cover her work with existing staff or get a temporary staff member.
Ultimately, as with a ill health enquiry, the goal is to reach a solution without compromising the business, some change and adaption maybe, but not at the risk of the operation of the business.
After the enquiry, which need not neccessarily be termed a ill health enquiry or a disciplinary hearing, you can confirm the way forward, and any policy or procedures the company has in terms of absence and any specific agreement the company and employee have made can be in written form and signed off which will set the base for any future action.

[tec0]

Well there is a lot of contributing factors here. I don’t know the full story so let us look at the arguments.

Fact one an employee is entitled to at least four “4” consecutive months maternity leave. The question would be did she get the full four “4” months? “In most cases the answer is no but I am sure this time around it would be yes.”

It is true that the CCMA knows that there has to be limitations on leave or even unpaid leave. But it still stands to reason in a hearing/ tribunal. The argument can go both ways and may even include health and safety regulations. “Like chemicals or poisons that may have contributed to the child being sickly as an example”

It is really scary how far this may go. As an example have a look at the CCMA code of good practice on Dismissals. See basically it boils down to the case at hand and was your actions fair or not.

Also you must remember that whatever you to this employee must be done to ALL the employees otherwise you will again look at discrimination and it is also why most companies have policies and regulations to make sure that procedure is followed to the letter.

The reason why I am writing all of this is to point out that noting is “clear cut” and there are really a lot of factors involved that may not be known at this point in time.

[brown]

Thanks Guys...

I guess Labour relations is not really 1 + 2. I will stick with the unpaid leave for now. We do have policies in place, and I will make a note of it to quote them to her.

Thanks one again!!

[Contact Labour]

Firstly the employee must provide proof of the child's condition through a doctor's note. If the doctor's note is valid and reflects a severe health condition the employee will be entitled to take 3 days Family Responsibility Leave.

Should she be unable to provide such evidence or if her Family Leave days are exhausted, then she may ask her managers authorization to use her leave of her annual leave day cycle in advance. But it is still up to the employer to decide whether or not to grant her the leave.

If an employee receives permission to take leave but their annual leave is exhausted then it will result in unpaid leave.

But should the employee be absent without the authorization of their employer it can constitute to a first written warning since it is regarded as a serious offense because not only did the employee abuse her leave days, she also ignored a direct order from her authority.

We are HR specialist, should you need more info you are welcome to send me a mail.