By Silke Rathbone, Principal Partner, LabourExcel
There is no doubt that mental health issues have been around for a very long time, and managing staff who are experiencing these issues still needs to be dealt with delicately. With the onset of the pandemic, mental health-related illnesses and ailments have become front and centre in our world. However, many employers do not know how to deal with this. The truth is that one needs to manage possible mental health problems as you would any ill health or injury.
With reference to the CCMA’s info sheet on Ill-Health and Injury of 2017, an employer should apply the standard conditions and rules when an employee cannot be at work.
The basic sick leave conditions are (herein taken directly from the CCMA info sheet) *that sick leave works in a three-year cycle. An employee who works five days per week is entitled to 30 days paid sick leave, and an employee who works six days per week to 36 days during a three-year cycle. 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. For example, an employee may take one day’s paid sick leave for every 26 days worked during the first six months of employment, and thereafter an employee may take the number of days he/she normally works in six weeks during each three-year cycle.
An employee may be requested to produce a valid medical certificate if he/she has been absent from work for two days in a row or more than twice in eight weeks. If the employee does not have a valid medical certificate, the employer does not have to pay the employee for the sick leave taken.
When can an employer dismiss because of illness or injury?
Fairness should always take the president above all rules. First, determine whether the illness or injury is temporary or permanent. Oftentimes, that may not be clear from the onset, but over time it can reveal itself. If it is not apparent, a professional may need to be called in to determine this. This is important because the following steps are different for each type of illness or injury. In keeping with the topic here, mental illness does fall within this.
The employer must determine whether they can:
- find alternative employment for the employee; and
- adapt the duties or work circumstances of the employee to
- accommodate the disability/illness.
- If they cannot do either, then dismissal may be justified.
Where the incident seems to be a temporary issue, the employer should:
- Investigate the severity of the incapacity
The employee should be given an opportunity to state his/her case during the investigation and may be assisted by a trade union representative or a fellow employee.
Where it appears the employee most likely will be off for a very long period of time, the employer must consider all the alternatives before dismissing. These are the areas to take into consideration:
- the nature of the job;
- the period of absence;
- the seriousness of the illness/injury; and
- the possibility of a temporary replacement.
An employee who contributes to the unemployment fund may, in certain circumstances, have the right to apply for illness benefits on account of his or her illness.
Employers should make a special effort to accommodate employees who have been injured at work or who contracted a work-related disease.
While these are the legal parameters to take into account, I cannot stress enough that you are dealing with a human being and that all possible scenarios should be considered, and always look at what is fair to both parties involved. Both parties being the employee (and their collective family) and you (and your business).
A mental health condition may not reveal itself quite as clearly as, say, a broken leg, the flu, or even COVID-19, but it is still as serious and should be treated as such.
*LabourExcel specialises in offering a variety of Labour Law and HR Solutions. Silke Rathbone, one of the Principal Partners, has crafted and honed her skillset and assists corporates and individuals along the Labour journey to ensure they understand what is required of them at all levels.
*Check out the latest edition of the Public Sector Leaders publication here.
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