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Health dilemma

Wednesday, 30 November 2011 09:30am

©The Star (Used by permission)
by Articles of Law By Bhag Singh

Paid sick leave cannot stretch for an indefinite period. There are limits, after which the affected employee may have to leave.

IF you are employed and fall sick, what are your rights in holding on to the job? This is the question posed by a reader who is unable to work.

The employee is advised to rest for a certain duration, but the employer is getting impatient with the employee’s absence.

When an employee falls sick and such a situation arises, it can pose a dilemma for the employer and the employee.

Of course, there is the entitlement of sick leave for the employee.

What leave an employee is entitled to will depend on the circumstances.

Under the Employment Act 1955, those who have been employed for five years or more will be entitled to paid sick leave of 22 days in each calendar year.

If hospitalisation is necessary, the employee is entitled to 60 days.

In this connection, it is necessary to be aware that if an employee is certified by a registered medical practitioner or medical officer to be ill enough to need hospitalisation but is not hospitalised for any reason, the employee is deemed to be hospitalised.

Employees who are governed by the Employment Act 1955 are at the lower rungs of the remuneration package.

Those outside the Act would likely enjoy more sick leave and annual leave, which in the case of employees governed by the Employment Act 1955, is 16 days for 12 months of continuous service.

Problem

Up to this point, the obligations are clearly expressed and well understood. And it is that the employee is entitled to paid sick leave.

Once this has been exhausted, the employee could rely on any unutilised annual leave which he is entitled to.

However, the problem begins when all such leave has been exhausted and there is no basis for the employee to be absent though he is certified to be unfit for work or has a medical certificate to that effect.

Whilst the employer may – during such extended period of absence for health reasons – pay the employee, this would be entirely on a compassionate basis and not on account of any legal entitlement.

For the employer, it may not be so much a question of money, but rather the work which is piling up, in the absence of the said employee.

The absence of an employee may affect the work that is being done or to be done.

It may have to be passed on to other employees and this may in turn affect their own performance or burden them with additional work, causing resentment.

Whilst the employee may need to rest on account of his ailment, repeated calls from the employer asking when the employee will return to work, may be distressing.

This is especially so when the employer uses language which may display some annoyance at the continued absence.

Provision

It may appear to the employee that the employer is indirectly telling him to resign if he cannot come back to work. He may feel that this is an act of unkindness on the part of the employer.

Some may even ask whether it can amount to constructive dismissal.

Of course, it is not always the employer himself who may call. It may be the human resource manager or the human resource executive or other designated persons.

Such a person may even be more harsh than the boss himself. But then it must be remembered that such a person may himself be under pressure by other employees who are affected by the absence.

What can or should be done in such circumstances?

To start with, the employer is entitled to terminate the employment of the employee because the relationship is such that essentially, the employee is paid for work done. In the process, allowances are made for holidays and sick leave.

Unless there is a specific provision in the employment contract or a contractual agreement that in such circumstances, payment according to an agreed formula is to be made, there would not be any such entitlement as a matter of right.

If the employee is unable to perform the obligations that have been undertaken, then the basis for the relationship no longer exists.

It is not the responsibility of an employer to continue paying an employee or to keep the position vacant indefinitely while the employee recuperates.

It may appear unfair that the employee should lose his job through no fault of his own.

In fact, in some cases, the situation may have been due to an accident that occurred in the course of employment.

But the recourse and remedy for this lies elsewhere.

Options

In some cases, the employee may have contributed to the difficulties that arise.

This happens because there are some employees who are over-enthusiastic about using up their annual leave and being on medical leave for trivial reasons.

If they had been more cautious about taking annual leave and not take MCs (medical certificate) for the slightest ailment, the available annual leave and sick leave would, in such circumstances, have served them better.

To deal with such a situation, an employee would take his condition into account when applying for one year’s unpaid leave, allowing the employer to take a replacement on a one-year contract.

This is, of course, subject to the employer agreeing. It would be more practical to get a replacement who is employed on a one-year contract as compared to getting a replacement who will be asked to leave once the sick employee returns to work.

There will be additional costs to an employer in taking a replacement even though for a one-year contract.

Who should bear the difference or in what manner this should be borne is another matter.

Of course, there is nothing to stop an employer from being compassionate and generous beyond what is contractually agreed to.

However, the employer may have to consider the precedent he is setting and whether he will be able to extend such generosity to others in similar situations, and the consequences if he does not.

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