AWOL and Medical Certificates

[yunus]

Your staff member has produced a pattern of absenteeism.
The correct thing to do is to make it clear to the staff that you now see a clear pattern of absenteeism and this kind of behaviour will not be tolerated as of now.

record this attitude change of the company and inform staff that in future such behaviour will receive a 2nd level warning followed by final then dismissal.

Keep to your threats , issue 2 warnings and then dismiss. the sick letter on saturdays is a cover . show the staff their records and their patterns.
If the staff all use a common Practioner then obviously something is amiss (maybe you need to give him a call)
Compile a dossier for the CCMA if it comes to that.
Your Labour consultant should be informed of the route you wish to take and ensure that all paperwork and correct procedure is employed to achieve your objective.

If you continue being soft your staff will continue to ride over you .
Its time for you to take a stand And put your foot down

[BBBEE_CompSpec]

Here's the scenario from both a medical and legal point of view. Gastro or Gastroenteritis as it is properly known usually leaves the patient dehydrated and exceptionally ill. The person usually calls the doctor out on a house call or goes to hospital by ambulance, unless there is someone to take them. The patient has the right to have the doctor examine him/her or to tell the doctor their signs and symptoms. The medical certificate has to reflect one of the two. Doctors can make mistakes. They are human. For example: You could go in to the doctor and tell him/her your symptoms. The doctor comes up with a diagnosis of Bronchial Pneumonia. She/he treats you for approximately eleven weeks and then suddenly the Bronchial Pneumonia bursts and you nearly expire from septicemia as a result of a ruptured appendix. It happens. The symptoms are the same.

It is a required practice in the safety act for the employee to notify his/her employer if they are on medication whether long term or short term. It is also their duty to notify their employer of the frequency of the hospital visitation and if they suffer from a long term illness. You'd be in hot water if an employee, let say a machine operator, came to work and collapsed at her working station. She injures herself seriously. At the incident enquiry it is found that the person suffer from Low Blood Pressure and she/he ran out of tablets the day before. You are responsible for the safety of all your employees. The WCA can refuse to pay the claim if they suspect negligence. Your business can pay up to 30% of the claim if found guilty of this negligence.

Even though the employee has the right to a sick leave cycle this is only for incidents of incapacity. Nothing stops the business owner from visiting the employee who is booked off ill to check whether they really are ill or not. If not at home and in bed then you have a serious offense and discipline should be the step.

Even though the law may provide for a Friday, Saturday, Sunday, Monday, a day before a public holiday, or the day after a public holiday or the returning to work from leave, the law also states that if an employee if off for another day in the next eight weeks, a doctor's certificate must be produced. Query the diagnosis on each and every certificate. You may have to put an EAP into place depending on the trend.

This is not a matter of being drastic or a bullying tactic. When you, as a business owner, went into business you did so with the intentions of running your own business. In South Africa, many hours of production are lost due to illness and false doctor certificates.

As legislation is their for the employee, due to wrongs done to them (in general) in the past, so too is legislation in place for the employers to challenge doctor certificates to ensure that the diagnosis is correct and the prognosis accurate. A doctor certificate, if handled and followed up incorrectly, can make or break your business. It is a very powerful tool that can cause you utmost grief and pain should you handle it incorrectly.

Get to know all your acts that govern the issuing of and the control of doctors certificates. There are at least nine.

[sterne.law@gmail.com]

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

We have 2 different issues being dealt with or discussed here, and it is important for employers to realize the critical difference, because quite correctly as Tesco says, if you get thsi one wrong, it could cost. Being absent, on a regular basis, albeit it with or without a sick note, could be as a result of one or two things - Is it misconduct, that is just a bad apple, OR incapacity or poor health. Misconduct is easy, do the paperwork, have the hearing. Poor health or incapacity are in themselves 2 different things. But both require a longer process(not neccessarily 12 months) of consulting, attempting to address the situation etc, etc. I will try and post a basic explanation of these difference - I think it is a critical issue for employers to note. We are often hasty, because of frustration, to act. The employee could be going for TB treatment lets say and because he does not want anyone to know does not bring the certificate, consequently the employer things it is a bad employee, rightfully so, where as if aware of teh situation would handle differently.

[VirtuallyAssist]

Very interesting thread, especially in the light of the report I read yesterday, that fake sick certificates are now being sold without the doctors even examining the "patient". This is causing companies severe financial loss

Just remember that Immodium can be bought over the counter without a prescription - anyone can take their "medication" to work - who is to say they are actually taking it?

Obviously companies have to be aware of this practice and also check the employee's track record - if they regularly get a bout of "gastro" - more investigation needs to take place.

[BBBEE_CompSpec]

Unfortunately TB is governed and controlled by the government. It is illegal to keep your status of TB from your employer. It is a criminal offense. Management controls the daily activities of a TB patient working for them. They have to monitor the employees hospital visitations and medication. As soon as the affected employee misses a tablet or runs out of medication it should be reported, immediately, to the closest clinic.

[BBBEE_CompSpec]

Sick Leave Entitlements:
1. The Company will provide for ___ paid working days in a 36 month sick leave cycle, that is, an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.
2. During the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked.
3. In the event of serious illness or accident, where additional sick leave may be required, refer to the Policy - Serious Medical Incapacity - Temporary or Permanent Disability.
4. To be eligible to receive paid sick leave, an employee will be required to produce a Medical Certificate signed by a registered medical practitioner stating the nature of the incapacity and its duration in respect of
i) any bona fide illness which results in their absence from work for a period of more than one working day, and /or
ii) one day’s absence which is taken the day before or after the employee’s day off or a paid public holiday, or
iii) any eight week period where an employee has been on paid sick leave on two or more occasions without producing a Medical Certificate. The employee will be required to produce a Medical Certificate for each further instance of sick leave within the next eight week period.
5. This shall in no way limit management’s rights to take disciplinary action where the attendance record of any employee indicates a possible abuse of sick leave.
6. A Medical Certificate is only prima facie proof that an employee has been on bona fide sick leave. The Company retains the right to query any Medical Certificate, and where it believes that such Medical Certificate does not justify being paid sick leave, the Company may legitimately refuse to pay the employee sick leave. The requirements of a Medical Certificate are the following:-
The Medical Certificate must state the nature of the medical incapacity; the duration of the incapacity; the date on which the employee consulted a Medical Practitioner; and must be
signed by a Medical Practitioner registered with the South African Medical and Dental Council.
7. Where an employee has been on sick leave for excessive periods, the Company reserves the right to conduct an enquiry into the employees capacity (or incapacity) to perform his job, and to take whatever lawful steps it deems appropriate, including but not limited to the termination of the employee’s contract of employment with the Company.
8. Managers, supervisors and employees are referred to the provisions of section 22 and 23 of the Basic Conditions of Employment Act, regarding Sick Leave.
9. Employees who have been on sick leave are required to complete the Sick Leave form, and attach any medical certificate to such leave form. Leave forms must be submitted to the ___________________ department.

[BBBEE_CompSpec]

A number of myths exist regarding medical certificates, e.g.

1. that employers cannot address employees regarding their absenteeism due to medical reasons until the employees have exhausted their sick leave in a particular cycle
2. that employees can stay away from work for up to two days, often linked to weekends or public holidays, without being ill, or
3. that medical certificates cannot be questioned..


The true facts are that employees must first of all be too ill to work in order to claim sick pay for periods of absence from work. If the employer has proof that the employee was not ill enough not to work, disciplinary action can follow for abuse of sick leave or absence without leave. In both cases the employee cannot claim payment for the period of absence.

Because the word "day" is not defined in the Basic Conditions of Employment Act (the “BCEA”), for purposes of the sick leave provisions, it can be assumed as meaning a "calendar" day. The employer may also require a medical certificate when the employee is absent on a Friday or a Monday because the employee is then absent from work for longer than the two days provided for in section 23 of the BCEA. The same applies when an employee is absent for reasons of ill health on more than two occasions in any 8-week period. The employer will then be able to require a medical certificate for every day's absence due to ill health for the remainder of his or her current sick leave cycle.

Medical certificates only constitute indirect evidence of an employee's illness. As documents "cannot speak for themselves", the employer can question either the authenticity or the content of the certificate if there is reason to do so. In this regard employers would be well advised to use the services of their own in-house medical personnel or that of a consulting medical practitioner before rejecting a certificate. The bottom-line, however, is that all medical certificates must comply with section 23 of the BCEA before they can be accepted, i.e. there must not be any reason to doubt their authenticity and it must be stated clearly that in the practitioner's own opinion, the employee was too ill or injured to work for the entire period of absence. This would require some proof of the fact that the patient was actually examined by the practitioner and an indication that the practitioner was of the professional opinion that the employee was unfit for work for the entire period of absence. A certificate that merely reflects what the employee told the practitioner does not meet these requirements.

It is recommended that employers, as part of their efforts to combat absenteeism, develop a clear policy regarding absence due to ill health. They must only accept medical certificates that comply with the legal requirements and provide sufficient proof of authenticity and proof of their contents.

Finally, the policy should state clearly that the employer may set standards for acceptable levels of absenteeism and that if an employee's level of absenteeism is deemed unacceptable, it could ultimately result in dismissal.

[Frankincense]

Yeah hey...seriously.....with over 22000 staff in the business "Nothing stops the business owner from visiting the employee who is booked off ill to check whether they really are ill or not. If not at home and in bed then you have a serious offense and discipline should be the step."


.......


...let the cash keep rolling in and the 666 flowing!!!...let's end this sh!t!!!!!

[BBBEE_CompSpec]

This is a forum. Every one here has a right to his/her opinion. We help each other. If, we as employers have to go to the CCMA based on a mistake we made, we will only have ourselves to blame for not ensuring we had followed procedure if we didn't come to the forum in the first place.

This is a largely debated subject that will continue until it has been exhausted.

[Frankincense]

...Yebo...one would like to hope that the 100's of managerial staff employed to manage the other 1000's don't consistently continue to regularly bungle up internal diciplinaries and dismisals due to lack of HR Labour law expertise & personal vendetta's...as the CCMA case pile reaches the roof, of just another pile of case files, stacked and archived...food for the building cockroaches.... usually getting settled before they even enter the CCMA chamber due to internal non compliance....business as usual...not ideal...6 of this...half a dozen of that....


...but I suppose one notices a good dismisal rate aswell.....it's like pigeon clay shooting...hit & miss......