Making employment laws work for you

Labour lawyer, Charles Bailie, helps us understand how employment laws (The Labour Relations Act and Basic Conditions of Employment Act) work for people diagnosed with cancer.

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Being diagnosed with cancer doesn’t mean the end of your employment but it may require adaptation and sick leave management. The adaptation will depend on the nature of the cancer, treatment plan and working environment. 

Labour Relations Act 

Section 10 of Schedule 8 of the Labour Relations Act provides a useful guide to employer and employee alike on how to deal with this type of situation. 

The first question is whether the injury or illness is permanent or temporary. If it’s temporary then the employer has a greater onus to retain the employee in the interim and the employer is compelled to look at the length of the time it will take for the employee to return to full capability. 

The Act prescribes that should an employee’s illness or injury preclude him/her from doing his/her duties, the employer can consider dismissal.  

It must be noted that this consideration must be met with the greatest amount of circumspection because it’s not as simple as saying, “They can’t do their job therefore they must go.” 

Incapable of performing duties

Where the employee is not capable of performing his/her duties, the employer must look at:

1. The extent to which the employee can perform their duties. What this means is that the employer bears the onus of looking at the duties of the employee and assessing what they are still capable of reasonably doing. 
2. The extent to which the employee’s work circumstances and/or duties can be adapted to accommodate the employee’s disability or illness. This can be as simple as providing wheelchair access or modifying workspaces or even considering whether the employee can’t perform their duties remotely, especially in the case of office employees. It is about finding a practical solution which enables the employee to continue rendering services for the company. 
3. The availability of any suitable alternative work. The onus on the employer is to look within the workplace and find a position that the employee could conceivably fulfil. Incapacity is a no-fault dismissal and as such the employer must look at all means short of dismissal before it can look at dismissal itself. This onus is even more if the cause of the illness or injury is work-related. 

Basic Conditions of Employment Act (BCEA)

Sections 22 and 23 of the BCEA deal with sick leave. An employee is entitled to 30 working days paid sick leave (assuming you work five days a week) or 36 working days paid sick leave (assuming you work six days a week) in a three-year cycle. 

This leave is contingent on valid medical certificates being issued and an employee can take the leave as required. 

If the days are depleted then the employee would still be entitled to sick leave but the employer would not have to pay them. 

Should an employee exhaust or deplete their paid sick leave entitlement, the employer will look towards incapacity proceedings as outlined earlier. 

In conclusion, it’s recommended that the employee be upfront with the employer and may have to disclose diagnosis, treatment plans and the like with employer as part of the incapacity process. 

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