Category Archives: Labour Law

Does your medical certificate justify your sick leave?

This article deals with medical certificates and whether or not an employee is justified in taking the day off for an “illness”.

Angela informed her employer on Monday morning that she would be staying at home as she felt very sick and was unable to do her work in her condition. Angela only decided on Wednesday that she would go to the doctor because she knew she would be returning to work on Thursday, and therefore needed a medical certificate from the doctor so that her work would not deduct the money from her salary. However, Angela had a surprise waiting for her.

What should a medical certificate contain?

In terms of Rule 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa, a practitioner will only grant a certificate of illness if the certificate contains the following information:

  • the name, address and qualification of the practitioner;
  • the name of the patient;
  • the employment number of the patient (if applicable);
  • the date and time of the examination;
  • whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
  • a description of the illness, disorder or malady in layman’s terminology, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
  • whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
  • the exact period of recommended sick leave;
  • the date of issuing of the certificate of illness; and
  • a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters.

If pre-printed stationery is used, a practitioner will delete words which are irrelevant. A practitioner will issue a brief factual report to a patient where such a patient requires information concerning himself/herself.

The above is largely self-explanatory. Sub rule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes to the doctor and informs the doctor that he has had flu since Monday and requires a sick note. The doctor is then required to write in the sick note, “I was informed by the patient that …”

What should the employer do?

An employer does not have to accept this as a genuine illness. The doctor is only telling you that the patient says he was ill. The doctor is not certifying that he made an examination and is able to confirm the illness. You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the doctor when he falls ill and not after he has recovered from the alleged illness.

Unfortunately for Angela, her employer recently read an article informing him of his rights to deduct money from her salary because she failed to come to work on Monday and Tuesday and only went to see the doctor on Wednesday, and there was no way of establishing that she definitely was ill on those days.

Conclusion

In light of the above it would be best for employees to see the doctor on the same day that they feel ill, and for employers to insist on seeing the medical certificate and examining it properly.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can surrogate parents get maternity leave?

a2bAlex and Ben are in love and decide to enter into a civil union on 31 October 2010 in terms of the Civil Union Act[1]. Everything is going great and a year later they decide as a couple to enter into a surrogacy agreement with a surrogate mother in terms of which they shall have a baby. The surrogacy agreement was in accordance with the Children’s Act[2] and was confirmed by Court Order.
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Ben and Alex discussed the logistics pertaining to their new bundle of joy. In terms of the Surrogacy Agreement they will be handed the child directly after birth, without the surrogate even catching sight of it. One or both of them will have to be available to care for the new-born from the moment of birth.

They decided that Alex would be the one to apply to his employer for paid maternity leave for a period of four months. This maternity application to his employer was in terms of the prescriptions of the Basic Conditions of Employment Act[3] (BCEA) and more specifically in terms of his company’s policy on maternity leave.

The company’s decision

Alex received feedback from his Human Resources Department, informing him that his application for maternity leave was rejected in terms of the company’s policy and the BCEA, as neither provides for the issuing of maternity leave for surrogate parents. As a counter offer Alex was offered and subsequently accepted two months paid adoption leave and two months’ unpaid leave.

Alex referred the dispute to the CCMA on the basis of unfair discrimination, because his company refused to grant his application for maternity leave due to the fact that he is not the biological mother of his child. They further argued that a commissioning parent party to a surrogacy agreement is not entitled, in terms of their company policy, to the full and due four months paid leave as females are under the same policy.

Alex was not at all satisfied with the treatment received by his company and he felt that he has been discriminated against, as the Children’s Act and the Civil Union Act both recognised his status and rights as a commissioning parent. There was therefore no excuse as to why his company and the BCEA should not recognise it as well.

The CCMA, upon hearing the matter, established that Alex’s company’s policies were similar but more stringent than the BCEA in that they provided separately for adoption leave as offered to Alex and Ben, and not at all for surrogacy rights to leave. Furthermore, it came to light that due to recent legislative developments as mentioned above, there was no reason why Alex should not be entitled to maternity leave and that such maternity leave should be granted for the full and/or same period as any other mother is entitled to.

Upon hearing submissions from Alex, Ben and Alex’s employer the CCMA decided that by refusing Alex’s application for maternity leave Alex was unfairly discriminated against by the company in its implementation and structure of its archaic maternity leave policy.

The result

The CCMA ordered that Alex be paid an amount equivalent to two months’ salary for the previously granted unpaid leave. In addition, Alex’s company must recognise the status of parties to a civil union and not discriminate against the rights of commissioning parents who have entered into a surrogacy agreement, in applying its maternity leave policy. The company was also ordered to pay Alex’s costs of having to bring this application.

Legislative intervention is needed in this regard in order to adequately and undeniably address the rights of commissioning parents to maternity leave. This case pertained to company policies and was addressed as such, but Alex and Ben initially sought relief for themselves and other similarly placed applicants so as to prevent unfair discrimination against them in this regard.

References:

  • [1] Act 17 of 2006
  • [2] Act 38 of 2005; Chapter 19
  • [3] Act 75 of 1997; Section 25 (hereinafter BCEA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Discrimination against pregnant women in the workplace

A3_bEmployees are often faced with a difficult situation in the workplace when falling pregnant. Many establishments react unfavourably towards female employees that fall pregnant. These employees are often discriminated against in various direct and indirect manners. There are, however, clear provisions that protect employees in these situations which employees should familiarise themselves with.

There are different ways in which employees can be discriminated against in the workplace due to the fact that the employee has fallen pregnant. These forms of discrimination have different degrees of disadvantage towards the employee. It can range from having her contract terminated, being treated badly, being verbally abused or being ridiculed because she has fallen pregnant.

As a point of departure, it is stated in Section 9(3) of the Constitution of the Republic of South Africa[1], that nobody may be discriminated against based on the fact that they are pregnant. It is therefore a constitutional right for an employee not to be discriminated against in any form or manner because of her pregnancy. This right is further confirmed by Paragraph 4.2 of the Code of Good Practice on the Protection of Employees during Pregnancy[2].

The most severe form of discrimination against an employee is the dismissal of an employee due to the fact that she has fallen pregnant. The Labour Relations Act [3] specifically mentions that an employer is not entitled to dismiss an employee due to her pregnancy. However, there are various other ways of discriminating against a pregnant employee that should be noted.

Employees should be mindful of more subtle forms of discrimination, such as contracts not being renewed when it was earlier apparent that it would have been, or where a promotion is not granted to an employee purely because she has fallen pregnant at a certain time. Whenever an employee can prove that there was a direct link between any disadvantage and her pregnancy, she will most likely be entitled to the appropriate remedy. Employees are further entitled to a certain amount of unpaid maternity leave and will be entitled to insist on it.

In the event of an employee being dismissed due to her pregnancy, or where it is clear that an employee was discriminated against in any way for this reason, there are various remedies for the employee to choose from. It is always a good idea to resolve the issue without taking legal action, as this will be an expensive exercise and will most likely cause a relatively uncomfortable atmosphere between an employee and an employer. An informal arrangement between the employer and employee is therefore recommended, yet it is not always a practical solution. However, if no other option is available to the employee, she will always have the option to approach the CCMA as well as Labour Courts to prove that she was discriminated against due to her pregnancy. She will then be in a position to request the appropriate remedy.

In conclusion, female employees should be mindful of possible forms of discrimination against them as it is clearly prohibited. Direct and indirect forms of discrimination exist but aren’t always easy to identify. However, if identified and proven, such discrimination will not be allowed and must subsequently be corrected.

Bibliography

Acts:

Constitution of the Republic of South Africa, 1996

Code of Good Practice on the Protection of Employees during Pregnancy

Labour Relations Act 66 of 1995

[1] Constitution of the Republic of South Africa, 1996

[2] Code of Good Practice on the Protection of Employees during Pregnancy

[3] Labour Relations Act 66 of 1995

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Kan ek steeds ‘n saak van onbillike arbeidspraktyk maak as ek geskik het?

A4_bIn hierdie artikel is die besprekingspunt of daar in die aangesig van ‘n ooreenkoms tussen ‘n werkgewer en ‘n werknemer in terme waarvan ‘n werknemer ‘n demosie na ‘n laer posisie aanvaar, die werknemer nogtans geregtig is om ‘n onbillike arbeidspraktyk-geskil oor hierdie demosie na die KMVA te verwys.

Die feite in Builders Warehouse (Edms.) Bpk. v Kommissie vir Versoening, Bemiddeling en Arbitrasie en Andere[1] is as volg: Die werknemer was ‘n Administratiewe Bestuurder by Builders Warehouse (Edms.) Bpk. Sy het van haar dokters verneem dat sy baie siek is en waarskynlik gereeld in die hospitaal opgeneem sal moet word en verskeie soorte medikasie sal moet neem. Oor die volgende drie jaar het haar afwesigheid aansienlik toegeneem, gevolglik het haar werkgewers bekommerd geraak toe sy nie meer in staat was om haar werk effektief te doen nie, selfs wanneer sy nie afwesig was nie, as gevolg van die newe-effekte van die medikasie. Na gesprekke met die werknemer het Builders Warehouse (Edms.) Bpk. haar tydelik afgedank hangende ‘n ondersoek oor haar vermoë om die funksies van ‘n Administratiewe Bestuurder uit te voer, met inagneming van haar gesondheid en vermoëns. Builders Warehouse (Edms.) Bpk. het ‘n onvermoë-verhoor gehou en die eksterne Voorsitter het beslis dat, as gevolg van die werknemer se oormatige en toenemende afwesigheid, ontslag die gepaste sanksie was. Die Voorsitter het haar egter ‘n demosie in plaas van ontslag aangebied. Die werknemer het hierdie demosie skriftelik aanvaar.

Nadat hierdie ooreenkoms tussen Builders Warehouse (Edms.) Bpk. en die werknemer gesluit is, het sy regshulp verkry en daarna ‘n klag by die KVBA ingedien dat Builders Warehouse (Edms.) Bpk. ‘n onbillike arbeidspraktyk gepleeg het toe hulle haar demoveer het.

Die vraag hier is of, in die aangesig van ‘n ooreenkoms tussen Builders Warehouse (Edms.) Bpk. in terme waarvan die werknemer demovering na ‘n laer posisie aanvaar het, sy tog geregtig was om ‘n onbillike arbeidspraktykgeskil oor hierdie demovering na die KVBA te verwys.[2]

Die arbiter in die KVBA het besluit dat, omdat daar toestemming tot die demosie was, die KVBA nie jurisdiksie het om die geskil aan te hoor nie. Die werknemer het hierna na die Arbeidshof appélleer en weer na die Arbeidsappèlhof, waarvan die uitkomste hieronder uiteengesit word.

Die Arbeidshof en die Arbeidsappèlhof het in hierdie verband na artikel 186(2)(a) van die Wet op Arbeidsverhoudinge[3] gekyk, wat die volgende bepaal:

“Onbillike arbeidspraktyk beteken enige onbillike handeling of versuim tussen ‘n werkgewer en ‘n werknemer wat –

‘n onregverdige optrede deur die werkgewer met betrekking tot die bevordering, demosie, proeftydperk (uitgesonderd geskille oor ontslag om ‘n rede rakende proef) of opleiding van ‘n werknemer of rakende die voorsiening van voordele.”

Die Arbeidsappèlhof het die uitspraak van die Arbeidshof gehandhaaf en bevind dat, hoewel ‘n bindende kontrak tot stand kom wanneer werkgewers en werknemers hul verskille per ooreenkoms oplos, so ‘n ooreenkoms nie beteken dat die KVBA nie jurisdiksie het om die geskil aan te hoor nie. Die feit dat die partye ooreengekom het dat die gegriefde werknemer ‘n demosie aanvaar, is nie ‘n volledige verdediging vir die werkgewer nie, omdat die bestek van hierdie onbillike arbeidspraktyk wyd genoeg is om die implementering van ‘n ooreenkoms om demovering te aanvaar, in te sluit.[4] Die Arbeidsappèlhof het bevestig dat die bepaling van die vraag of ‘n demosie plaasgevind het, in teenstelling met die bepaling van ontslag, nie ‘n arbiter vereis om te bepaal of daar toestemming was of nie.[5]

Ten slotte is dit duidelik uit die geval van Builders Warehouse dat, alhoewel toestemming ‘n relevante kwessie oor die meriete van ‘n geskil oor ‘n onbillike arbeidspraktyk is, dit nie ‘n jurisdiksie voorvereiste is nie. Dit beteken dat die KVBA die mag het om ‘n saak rakende ‘n demosie aan te hoor, selfs al is toestemming daartoe verleen.

Verwysingslys

  • Builders Warehouse (Edms.) Bpk. v Kommissie vir Versoening, Bemiddeling en Arbitrasie en Andere (PA 1/14) [2015] ZALAC
  • Wet op Arbeidsverhoudinge 66 van 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4]  Builders Warehouse (Edms) Bpk v Kommissie vir Versoening, Bemiddeling en Arbitrasie en Andere (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Edms) Bpk v Kommissie vir Versoening, Bemiddeling en Arbitrasie en Andere (PA 1/14) [2015] ZALAC Par 13.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)

Basic conditions of employment

A3_b

There are basic standards which are set out in the Basic Conditions of Employment Act 75 of 1997 which regulate, amongst other, the working hours that employees are permitted to work. Whether these conditions are enforced in practice, however, is uncertain.

The Basic Conditions of Employment Act 75 of 1997 (BCEA) sets certain minimum standards of working conditions for employees. In Section 1 and 3 the BCEA sets out that it does not apply to independent contractors, as well as certain others such as unpaid volunteers, members of the South African National Defence Force and South African National Secret Service. Conditions regulating working hours are included in the BCEA which, in addition to the general exclusions mentioned above, exclude the following persons:

  • Senior managers;
  • Sales staff who travel to the premises of customers and who regulate their own work hours;
  • Employees who work less than 24 hours a month for an employer;
  • Employees earning in excess of R 205 433.30 per annum.

If you do not fall into one of the abovementioned categories then the conditions in the BCEA (Sections 9 to 15) regulating working hours will apply to you.

The maximum amount of working hours per week are 45 hours. Those who work five days a week may work for 9 hours a day and those working six or seven days a week may work for 8 hours a day. These hours may be extended by agreement between an employee and employer but this extension is limited to a maximum of an extra 15 minutes per day or, alternatively, an extra 60 minutes per week.

A meal interval of at least 1 hour is due to an employee who works continuously for more than 5 hours and at this time the employee may only be asked to perform tasks that cannot be left undone or that cannot be entrusted to another employee. If the employee is required to work during a work interval, or if they are required to be available for work, that employee must be remunerated for being available during that time.

Overtime is limited to 10 hours per week if it is arranged per agreement between an employer and employee. This can, however, be increased to 15 hours a week by means of a collective agreement but this agreement is limited in duration in that it may not apply for more than 2 months in a 12 month period. The rate at which remuneration is calculated for overtime is at 1.5 times the employee’s normal remuneration.

These are some of the basic conditions regulating working hours, and further conditions and exceptions thereto can be found in Section 9 – 18 of the BCEA. Although the abovementioned conditions seem to provide protection to employees many employees will merely take note of them and continue to work overtime continuously without pay and without complaining. Unfortunately we live in a country where there are far more people to fill jobs than jobs available and therefore the only time that this Act is properly utilised is through collective bargaining and trade unions; therefore it offers little comfort to individual employees not belonging to trade unions.

Bibliography:

  • A C Basson, M A Christianson, A Dekker, C Gerbers, P A K Le Roux, C Mischke, E M L Strydom: Essential Labour Law 5th (2009)
  • Basic Conditions of Employment Act 75 of 1997

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice