Dealing with incapacity of a worker due to illness, injury

Many employers are faced with the challenge of how to handle an ill health or injured employee. The challenge mostly arises in situations of prolonged illness or when an employee abuses or misuses his/her right of sick leave. It is essential for employers to understand that terminating an employee should always be a matter of last resort after following the rigorous safeguards under the law.

In reality, it is not an easy process to terminate an employee for ill health or injury as an employer has to balance the interest of his business and the employee’s rights under the law.

Some employees may even challenge the employer’s decision on the basis of underpayment in sick leave, mistreatment or disputing the finding of incapacity and thus allege unfair termination. Indeed, there are cases of this nature. For that reason, in this article I would like to focus on the paramount factors that ought to be adhered to by both employers and employees in the event of incapacity of an employee.

Firstly, the Employment and Labour Relations Act of 2004 (ELRA) makes it clear that employees are entitled to paid sick leave for at least 126 days in any leave cycle. In the first 63 days an employee shall be paid full wages but in the second 63 days the employee shall be paid half wages.

In some cases, employees are tempted to misuse this benefit, willfully or out of ignorance.

For example in the matter of Musoma Fish Processing v Maulid Shaurin, High Court of Tanzania, Labour Division, Dar es Salaam, Revision No. 243 of 2009, an employee was involved in an accident on March, 2009 and was hospitalized from that time to 1st April 2009.

The employee demanded for payment of salary for six months for April, May, June and half pay of the remaining months. At that time the employee was neither under supervision of a recognized medical practitioner nor appearing for work.

The employer refused to pay the employee.

The matter was referred to the Commission for Mediation and Arbitration (CMA) and award was delivered in favour of the employee. In revision, the High Court of Tanzania (Labour Division) stated that payment of sick leave under the relevant law is premised on production of a medical certificate from a certified medical practitioner.

The court confirmed full payment of salary for April and May the months in which the employee was provided with excused duty (ED) by the doctor and quashed payment for the subsequent three months.

Consequently, it is important to note that an employee has a duty to produce a medical certificate from a registered medical practitioner.

On the other hand, an employer is not obliged to pay the employee wages if the employee fails to produce a medical certificate or if the employee is not entitled to paid sick leave under any law, fund or collective agreement.

Secondly, an employee must have worked for six months with the employer in order to have paid sick leave.

However, if the employee has less than six months service, she/he must have worked more than once in a year for the same employer and the total period worked for that employer exceeds six months in that particular year.

This therefore means that not all employees are entitled to paid sick leave. The period of service provided by the employee shall be examined.

Thirdly, an employer is not allowed to discriminate or mistreat an ill health or injured employee whether directly or indirectly.

Despite the fact that an employee may be sick or injured she/he is still entitled to be treated fairly and equally like other employees.

Fourthly, before deciding to terminate an employee for ill health or injury, the law requires an employer to determine the fairness of the reason.

The most common requirements/criteria is that the employer will have to consider the cause and degree of incapacity on the part of the employee, the temporary or permanent nature of the incapacity and whether the employee is able to work. At this stage, an opinion of a registered medical practitioner is required.

If the employee is incapable of working, the employer shall consider (i) the extent to which the employee is unable to perform the work (ii) the extent to which the employee’s work circumstances might be adapted to accommodate the disability or if not possible the extent to which the employee’s duties might be adapted and (iii) the availability of any suitable alternative work or employment.

Additionally, adhering to the above safeguards is not enough. An employer is also obliged to follow a fair procedure. The law requires an investigation to be made. The employee has to be consulted in the process of the investigation and provide alternatives. If the employer after considering the alternatives advanced refuses to accept them, reasons shall be given.

A meeting shall be held with the employee who may be represented by a fellow employee or union representative.

During the meeting, the employer will have to provide reasons for the action to be taken and allow the employee to make presentations before making any decision.

The outcome of the meeting should then be communicated to the employee in writing with brief reasons.