Archive for Misconduct

Sick Leave

Posted in Basic Conditions of Employment, Questions and Answers with tags , , on December 3, 2007 by labourlawoffices

Question:

I employ a storekeeper who has exhausted his sick leave entitlement in both of the last two years. He is now approaching the limit of his sick leave entitlement for the third consecutive year.  Am I entitled to dismiss him?

Answer

The Basic Conditions of Employment Act, 1997 (‘the Act’) provides that an employee’s sick leave entitlement is calculated with regard to a sick leave cycle constituting a period of 36 months’ employment with an employer from date of commencement of employment, and on an ongoing basis. The Act provides that during such 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. 

The basic conditions of employment provided by the Act constitute a minimum floor of rights to which all employees are entitled. It follows that an employee can not be dismissed purely on the basis of using up all available paid sick leave days.  Where the employee excessively absents himself from work due to ill health, such employee would become entitled to unpaid sick leave in the normal course of events. If such employee fulfils a key duty or task or places unreasonable and impossible demands on the company and/or his fellow employees as a result of his constant and excessive absence from work, the employer may consider terminating employment based on operational requirements. 

To achieve such outcome the employer would have to consult with the affected employee and/or his trade union as required by the applicable provisions of Section 189 of the Labour Relations Act and show that the employee’s termination of employment became necessary based on the economic, technological, structural or similar needs of the employer.  However, if there is evidence available to show that the employee is in fact abusing his sick leave entitlement, in other words that he is absenting himself from work in circumstances where he is not in fact ill or unfit to attend work, such conduct may be regarded as misconduct and may form the subject of a disciplinary enquiry which may lead to dismissal.  In such an event, evidence of actual abuse eg false or fake medical certificates would naturally have to be proven.
 

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