AWOL and Medical Certificates

[Yvonne]

A labor lawyer once advised us that we had absolutely no right to query any information regarding the medical aspect of the absence.

This happened when a new employee was prescribed antidepressants (following a break up of a romance!) which had the side effect which resulted in her inability to remain focused at work, thus she came in some mornings and left before 10am as she "was unable to function", doctor backed it up with a certificate!

Our manager suggested she ask for a re-evaluation of the medication and request that her prescription be replaced with something that had less side effects!
Our labor consultant advised us that moment of stupidity (trying to give medical advice!) could result in a CCMA hearing and a substantial payment if the employee took it further!

Presently we have an employee who takes a day off a month to go to the clinic to fill a prescription, and have her blood pressure tested.

Our company provides each employee with a monetary benefit towards a medical aid, which they must arrange themselves.
Almost all of our employees choose not to subscribe to a medical and keep the money, so why should our company be penalised with a full day off instead of a local doctors visit?
Due to the 30 days of sick leave in a three year cycle, it will be some time before this employee will go onto unpaid sick leave.

I personally do not agree with the three year sick leave cycle, in my opinion it should be pro-rata on a annual "worked" basis, regardless of how long the employee has been employed, and we should be permitted to use our discretion without fear of creating a precedence for other employees.

I still think we need a lobbying body for employers of SME's!

Yvonne

[sterne.law@gmail.com]

A labor lawyer once advised us that we had absolutely no right to query any information regarding the medical aspect of the absence.

This happened when a new employee was prescribed antidepressants (following a break up of a romance!) which had the side effect which resulted in her inability to remain focused at work, thus she came in some mornings and left before 10am as she "was unable to function", doctor backed it up with a certificate!

Our manager suggested she ask for a re-evaluation of the medication and request that her prescription be replaced with something that had less side effects!
Our labor consultant advised us that moment of stupidity (trying to give medical advice!) could result in a CCMA hearing and a substantial payment if the employee took it further!

Presently we have an employee who takes a day off a month to go to the clinic to fill a prescription, and have her blood pressure tested.

Our company provides each employee with a monetary benefit towards a medical aid, which they must arrange themselves.
Almost all of our employees choose not to subscribe to a medical and keep the money, so why should our company be penalised with a full day off instead of a local doctors visit?
Due to the 30 days of sick leave in a three year cycle, it will be some time before this employee will go onto unpaid sick leave.

I personally do not agree with the three year sick leave cycle, in my opinion it should be pro-rata on a annual "worked" basis, regardless of how long the employee has been employed, and we should be permitted to use our discretion without fear of creating a precedence for other employees.

I still think we need a lobbying body for employers of SME's!

Yvonne

Employees may be entitled to the 30 days, this does not however preclude them from being disciplined. Where there is such absence a decision needs to be made, or differentiation, between misconduct an incapacity. Incapacity would include the anti depressant employee mentioned. It does however require a more formal pocedure and more onus on employee to help. You can send employee on 2 months UNPAID leave, for instance, to deal with the issue. Where the company is contributed o medical it is perhaps best to a) make the contribution directly to a medical aid or b) staff may only use certain doctors, the company prescribes and us the mone to pay these doctors. Both these changes would require a consultation process

[BBBEE_CompSpec]

If she produces a sick certificate but the certificate does not compy with the MASA Rules or she does not go to the doctor immediately she becomes ill you can refuse to pay for the day she never went to the doctor. MASA Rule 19 is quite clear on what has to appear on a doctor's certificate.

[sterne.law@gmail.com]

If she produces a sick certificate but the certificate does not compy with the MASA Rules or she does not go to the doctor immediately she becomes ill you can refuse to pay for the day she never went to the doctor. MASA Rule 19 is quite clear on what has to appear on a doctor's certificate.

The issue of the certificate itself is quite correct. However an employee who is absent for one day does not need to produce a medical certificate to claim sick leave. However if the day of absence preceeds or is after a weekend or public holiday, then you can compel them to produce a sick certificate, failing which you need not pay them. The other occasion is where the employee is absent for the 1 day, but it has occurred twice within an 8 week period, then again a certificate must be produced failing which you need not pay them.

[Marq]

Just rounded out our policies and procedures that we use for our personnel. Very short and sweet and fairly clear. Perhaps you could use something similar...

1. Sickness: No excuses will be acceptable. We will no longer accept the Medical Examiner or Doctors statement as proof of illness as we believe that if you are able to go to the Doctor, you are able to come to work.
   
2. Leave of Absence for an Operation: We are no longer allowing this practice. We hired you as you are, and to have anything removed certainly makes you less than we bargained for.
   
3. Death, Other than Your Own: This is no excuse. If you can arrange the funeral services to be held late in the afternoon, however, we can let you off an hour early, provided all your work is up to date.
   
4. Death, Your Own: This will be accepted as an excuse, but we would like at least two weeks notice, as we feel it is your duty to teach someone else your job.
   
5. Quantity of Work: No matter how much you do, you'll never do enough.
   
6. Quality of Work: The minimum acceptable level is perfection.
   
7. Advice from the HR Manager: Eat a live toad first thing in the morning and nothing worse will happen to you the rest of the day.
   
8. Your Manager is Always Right.
   
9. When the Manager is Wrong, Refer to Rule 8.

[Dave A]

Every time someone adds to this thread, I keep being reminded of this bit:

I still think we need a lobbying body for employers of SME's!

... that genuinely represents the interests of SMEs!

For a while I thought BUSA was going that route, but in the end it seems not

[sterne.law@gmail.com]

I am afraid most Employers Organizations are to allow representation at CCMA rather than serving interest of employers - this is where Unions are triumphant!

[tec0]

I am reading all of this but again, if you “provide for a qualified second opinion� that doctor or specialist can determine “alternative treatment and medication� Especially if the person in question can no longer function on the treatment he or she is receiving.

However if an employee have pure attitude towards other staff and management, keep records, then you can get your HR to “file� disciplinary actions with the CCMA and Union “if applicable� and allow for a hearing.

Then you allow for retraining and counselling for 3 months “2 hours every week and add it as an extended lunch for the person in question� “Be forthcoming with this� Then revaluate this person’s actions and attitude “again keep record� If the person improves then you win. If the person keeps on having a bad attitude; then get HR to reconvene with the CCMA and Union and represent your findings to them also include that you did everything “reasonably possible� to improve attitude and work performance.

At this stage the CCMA and Union will have a “long talk to this person in question� because there are records suggesting that he or she is slacking� Now you suggest that the CCMA and Union must suggest “disciplinary action� this is lengthy I know but it normally works.

Implement suggested “disciplinary action� and give it 3 more months. If the person in question improves you win! If not reconvene with CCMA and Union and hand over the records and demand that they take action because you are losing money and stuff like that... Then recommend “unpaid leave� with a final written warning as a “disciplinary action�. Normally they will comply because of the records that you provided. “If the CCMA and Union are unreasonable I recommend escalating with legal help�

If the person in question improves you win! Give it 3 months... if not then reconvene with the CCMA and Union and move for dismissal. By now the CCMA and Union will “normally� no longer argue the facts and if you did everything “BY THE BOOK� the dismissal will be approved and you can give the person in question “final notice� and start training a replacement.

All I can say is “Be Smart� AND --- > play it by the book...

[Dave A]

Tec0 - If I read your last post right, we're talking a 12 month process! Did I understand that right?

[tec0]

Twelve months Yes. I know it sounds like forever but there is a good reason for the time. First of I am used to an industrial sector. As you know we have so many laws and step on so many toes when you want to fire someone it is damn near impossible. Nearly impossible...

So you have to do what is best for the company. See it comes down to liability. If you did anything wrong on your side you will pay dearly for your mistakes no matter how small. So if you get the CCMA involved and the Union “if needed� then the process will be lengthy but in the end it is worth it because when “you� recommends dismissal you as a company can no longer be held liable, because the Union and CCMA was with you on every step making their own recommendations along the way.

It is a long process and I understand that most companies will think that I am crazy. But again just look at the amounts of money that you may lose if the Union and CCMA finds that you did something wrong! You may end up losing thousands and may even face lawsuits!

Also it depends on what the person in question did wrong. If the person is guilty and his or her offence is of a criminal nature it will speed things up but always remember “criminals have rights� and representation is a legal must.

Take your time, do things right and always work with the unions and CCMA because it is easier to deal with them while the proceedings are taking place. Dealing with them “Union and or CCMA� after a dismissal, you will need all your ducks in a row because they are relentless!