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Sick leave and medical certificates 

Nicolene Erasmus

 

What the Basic Conditions of Employment Act says:

22.   Sick leave.—(1) In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following—

(a) an employee’s commencement of employment; or

(b) the completion of that employee’s prior sick leave cycle.

 

(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

 

(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

 

(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).

 

23.   Proof of incapacity.—(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

 

(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.

 

(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.

 

What does it really mean?

  • From the moment an employee commences his employment, the sick leave cycle starts.

 

  • This section does not apply to employees who work less than 24 hours per month for an employer. These employees will have to negotiate sick leave with their employers.

 

  • An employee who works 5 days per week is entitled to 30 days every 36 months. An employee who works 6 days per week is entitled to 36 days sick leave every 36 months. Where an employee works Monday to Friday, plus every second Saturday, the employee is entitled to 33 (30 + 3 Saturdays) day sick leave.

 

  • During the first six months of employment, an employee (this also applies to an employee employed on a fixed term basis for a period of 6 months or less) is entitled to 1 day’s paid sick leave for every 26 days worked. If the employee needs extra sick leave, it will be in the form of unpaid leave.

 

  • And employees employed on a fixed term basis for a period of say, 8 months? There is nothing in the Act that suggests that these employees are not entitled to all the sick leave afforded to them by the Basic Conditions of Employment Act. It may happen that an employee who works 5 days per week may be absent for reasons of illness for a period of 30 days. And the employer has to accept that – on condition that the employee is booked off by a medical practitioner.

 

  • An agreement in terms of which an employee agrees to take not more than 10 (or any number of days less than the number of days to which an employee is entitled) days sick leave per year is invalid. On the first day of the seventh month, an employee is entitled to ALL his/her sick leave.

 

  • Only an employee who is too sick to work, may claim paid sick leave. If the employer is in a position to prove that the employee was not sick, disciplinary steps may be taken against the employee.

 

  • If the employee is sick for one or two days, the employer has to grant paid sick leave, even if the employee is not booked off by a medical practitioner.

 

  • If the employee is absent for “more than two consecutive days” without a medical certificate, the employer does not have to pay the employee. This means that an employee needs to produce a medical certificate on the third day in order to receive his/her pay for the three days.

 

  • May an employer require a medical certificate when the employee is absent on a Friday or a Monday, or the day before or after a Public Holiday? No! The Basic Conditions of Employment allows an employee to be “absent from work for more than two consecutive days or on more than two occasions during an eight-week period” before having to submit a medical certificate. An employee who does not work on Saturdays and Sundays, is NOT absent from work for more than two consecutive days. The employee is absent only on the Friday and the Monday (two consecutive work days) – and will only have to produce a medical certificate if he/she is also absent on the Tuesday. The second part of subsection (1) may also be used to justify this viewpoint. The employee’s absence on the Friday could be seen as the first occasion, his/her absence on Monday as the second occasion – which means that the employee has not been absent from work for… more than two occasions during an eight-week period.

 

  • What is a medical certificate? It is a document issued and signed by someone who is certified to diagnose and treat patients and who is registered with a professional council. This may include dentists, psychologists, interns and nurses. Some sangomas or traditional healers do belong to a professional association, but as this is avoluntary association they are excluded as persons who may issue a medical certificate.

 

  • What is the “status” of a medical certificate? A medical certificate constitutes indirect evidence of an employee’s illness. Where a medical certificatestates no more than that the employee was examined by the doctor, and that the doctor “was informed” that the employee was unfit for work, the medical certificate cannot be accept as proof that the employee was in fact ill.

 

  • What can an employer do with an employee who abuses sick leave? It will depend on the employer’s disciplinary code and the employee’s disciplinary record. But that is a question that will be dealt with in another Labour Law: The Basics chapter.

 

For more information contact Nicolene Erasmus

 

The Protection of Personal Information


By Jan du Toit, Senior Consultant, SA Labour Guide

 

After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.

 

The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.

 

Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.

 

The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.

 

The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.

 

Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.

 

The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone

 

The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.

 

A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.

 

Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:

 

Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.

 

Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.

 

A further requirement is that the Personal Information must be collected directly from the Data Subject.

 

Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.

 

Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.

 

Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.

 

The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.

 

Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.

 

A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.

 

Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.

 

As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.

 

Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.

 

In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.

 

Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.

 

Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.

 

Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.

 

Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.

 

Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.

 

From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.

 

Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.

 

The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.

 

For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .

 

 

 

 

 

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