Imagine that you had an accident at your workplace und you are unable to return to work soon as result of your injury. Would your employer be entitled to systematically deplete your sick leave, annual leave, special leave and eventually put you on unpaid leave? Fortunately not, as long as your situation is covered by the Compensation for Occupational Injuries and Diseases Act (COIDA) of 1993 read with the Basic Conditions of Employment Act.
COIDA mostly indemnifies and employer against personal injury claims for injuries sustained by employees at the workplace. As a trade-off to employees for taking away their right to be compensated for such injuries, COIDA provides for compensation in the case of disablement caused by occupational injuries or diseases, sustained or contracted by employees in the course of their employment, or death resulting from such injuries or disease.
Section 24 of the Basic Conditions of Employment Act (BCEA) stipulates that sick leave do not apply to an inability to work caused by an accident or occupational disease as defined in COIDA (or the Occupational Diseases in Mines and Works Act), except in respect of any period during which no compensation is payable in terms of those Acts.
Section 22(2) of the COIDA stipulates that no periodical payments may be made in the case of temporary total disablement or temporary partial disablement that lasts for three days or less.
The practical effect when Section 24 (BCEA) and section 22(2) (COIDA) are read together is that it would be legal to use sick leave where the worker is booked off for three days or less.
When the employee is booked off due to an accident or occupational disease for 4 days or longer, but less than 3 months, the employer must pay the injured employee at a rate of at least 75% of his earnings, from the first day, until the employee returns to work.
Where the employee, due to more severe injuries, is booked off due to an injury on duty for a period longer than 3 months, the employer is legally obliged to pay the injured employee at a rate of least 75% of the workers earnings, for the first 3 months. Employers can claim the periodical payments made to the employee (during the first three months) back from the Compensation Fund.
Once the first 3 month period expires, the injured employee must claim compensation from the Compensation Fund. You can claim compensation for temporary disability for 1 year. This can be extended to 2 years, after which the Commissioner may decide that the condition is permanent and grant compensation on the basis of permanent disability.
Although an employer is not entitled to use an employee’s sick leave and eventhough the injured employee gets compensated, the question arises whether the employer is under the obligation to keep the job open indefinitely where the employee is absent from work for a long period due to ill health.
In Parexel International (Pty) Ltd v Chakane and Others [2019] 11 BLLR 1245 (LAC), an employee was absent from work due to ill health for nine months after having suffered an injury on duty whereby she hit her head. The employee was initially absent for six months. The employer stopped paying the employee’s salary as her sick leave had been exhausted, but continued to contribute to medical aid, provident fund and life cover. The employer held a number of incapacity hearings in an attempt to ascertain when the employee would be fit to return to work. At each hearing it was found that she would recover over time. The employee eventually returned to work but a few days later her employer was informed that she could not work due to back pain that had caused a headache. The employer then required the employee to submit a medical report which was not forthcoming. Eventually, the employer dismissed her for incapacity with immediate effect. The Labour Appeal Court held that an employer is not required to keep the job open indefinitely and cannot be expected to tolerate an employee’s prolonged absence for ill health and that the dismissal was accordingly fair.
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