As an employer, the question often begs; what constitutes ‘sick leave’ and is an employee simply taking advantage? This issue comes up regularly with our clients; they often ask ‘when must a sick note be produced?’, ‘does traditional healing make provision for sick leave?’, ‘Does mental illness, such as depression or anxiety, count as sick leave?
L S v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 2205 (LC) held that mental illness is not the wilful nor intentional refusal of an employee to render his/her employment services to his/her employer. Rather, the employee’s inability or incapacity to render said services, which in turn, requires a sensitive and understanding stance on the part of the employer.
There exists a misconception that sick leave accounts for physical illness/injury and does not go beyond that point; this is incorrect. Mental health issues/illnesses are given the same weight as a physical illness when sick leave is required from an employee. However, this does not mean that you, as an employer, cannot ensure that your employee is not taking advantage.
If an employee seeks the help of a medical professional for depression and anxiety (for example), as an employee would do in the case of flu, and said employee is booked off by the medical professional, sick leave would kick in, which every South African employee is entitled to take.
Briefly, sick leave works in a 36-month cycle, starting from the commencement of employment, giving an employee the same number of paid leave days as they would typically work in six weeks. It should further be borne in the mind that a medical professional is not obligated to give the reasons for booking off an employee, meaning should the sick note simply read ‘illness’ or left blank this is sufficient.
It is crucial to note, although South African Labour Legislation prohibits discrimination on the grounds of mental illness, in terms of the Employment Equity Act, should an employee be provided with an employment contract which stipulates that during employment, should any illness, physical or mental, arises which could impair the employee’s ability to carry out their duties, then an employee is obligated to disclose such information as soon as reasonably possible after diagnosis.
Should an employee fail, alternatively neglect, or further alternately refuse to make such disclosure to their employer, then an employer would be entitled to take such steps necessary in response to such negligence/failure/refusal. On the flip side, in the interests of transparency and the event of an employee making said disclosure to an employer, where an employee is unable to get professional help, there exists an onus on the employer to find possible solutions to assist their employee. Examples of which could include sick leave alternatively sick periods, flexi-time or reduced workload – these possible solutions are generally determined by an ill health incapacity inquiry.
For context, an ill health incapacity inquiry is a formal process. Wherein, an independent Chairperson, is appointed to determine the permanency of the ill health and what alternative working arrangements may be sought to assist both the employee and employer.
An ill health inquiry should always be accompanied by proof, in the form of specialist medical report(s), as to the manner and effect of the employee’s mental illness, as well as a recommendation from the specialist medical practitioner as to how the company may best adapt the employee’s daily tasks to cater for the mental health issue(s).
Should it be determined, through investigation by the independent Chairperson, and on suggestion by the specialist medical practitioner that adaption of the employee’s daily tasks is not suitable, dismissal may be recommended by said Chairperson. However, It should be borne in mind that dismissal is the exception and not the rule. A thorough investigation would have to have been had to reach the stage of a recommendation of dismissal.
There exist numerous examples in South African case law which demonstrate that reasonable steps must be taken when dealing with an employee who experiences mental health issues. Such as in the matter of Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality and Others [2012] 7 BLLR 660 (LAC).
In this matter, the court determined that the incapacity investigation carried out by the employer was not thorough enough; no real effort had been made to adapt the employee’s working conditions, and thus the dismissal of the said employee was deemed unfair.
In dealing with sick leave, we often find that employees will seek medical assistance from traditional healers. Traditional healing is recognised in South African law as a valid form of medical support, as is the case with a general practitioner; the issue which often arises is proof.
In the past traditional healers outright refused to provide their patients with medical certificates/notes, which an employer would require as proof of an employee’s absence due to illness (be it physical or mental). However, this position has changed. It has become common practice for registered traditional healers to provide such documentation to their patients to avoid disciplinary action, which an employer would be advised to take into account.
Traditional healing by no means should be overlooked by an employer simply because Western Culture does not fully comprehend the practice. Traditional healing, in many African cultures, is given the same effect and weight as Westernised medical practices. Albeit the ‘healing’ methods differ significantly. The reason for which an employee uses a traditional healer carries no less significance than the reasons for which an employee uses a general practitioner.
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