# Regulatory Compliance Category > Labour Relations and Legislation Forum >  New employee has cancer - help!

## Pap_sak

Just need to get my ducks in a row regarding sick leave.

I have a new staff member that has been with me for 4 months (3 month contract, now permanent).

2 weeks ago she asked to borrow money for an preventative operation (cancer) - money is extremely tight at the moment but once I heard it was cancer I said go ahead and book and I will put it on my credit card - she can pay it back (R4500)over a year or so. She reckoned she would be back 1 week after the op. It's a government hospital and as she works (shop assistant, low pay) it still seems they charge.
The op is scheduled for November.

Last week the doctor phoned, and it's been confirmed that she has cancer (really sad, she is only 21). My advice was to move back to her family for two reasons...the chemo/treatment would be free if she was unemployed also she would have the support of her parents.

As said, for me money is tight, for the first time ever I have a couple of accounts frozen - It's not all bad as my 6 good months start in december which is just around the corner. 

If she decides to stay, what are my legal rights? If she takes 3 months sick - do i have to pay? Is there a limit on how much sick leave a person can take?

It sounds pretty heartless I know ( and I can assure you I am not) - but would like to know where I stand.

Lastly if she leaves could she claim UIF?

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## Pap_sak

found this pretty help full - won't follow this to the letter as it's way too harsh for her situation.

Basic Guide to Sick Leave
by Zopedol  last modified 2008-05-30 14:16 
Workers may take the number of days they would normally work in a 6-week period for sick leave on full pay in a 3-year period.  Employers may insist on proof of illness before paying a worker for sick leave.ApplicationThe Basic Conditions of Employment Act applies to all employers and workers, but not -·	members of the -o	National Defence Force,o	National Intelligence Agency, oro	South African Secret Service; or·	unpaid volunteers working for charity.The section of the Act that regulate working hours does not apply to:·	workers in senior management·	sales staff who travel and regulate their own working hours·	workers who work less than 24 hours in a month·	workers who earn more than R115 572 per year·	workers engaged in emergency work are excluded from certain provisions.See·	Basic Conditions of Employment Act Applies to all employers and workers and regulates leave, working hours, employment contracts, deductions, pay slips, and terminationApplication for Sick LeaveThe provisions for sick leave do not apply to -·	workers who work less than 24 hours a month·	workers who receive compensation for an occupational injury or disease·	leave over and above that provided for by the Act.Number of sick daysWorkers may take the number of days they would normally work in a 6-week period for sick leave on full pay in a 3-year period. However, during the first 6 months of employment, workers are only entitled to 1 day of paid sick leave for every 26 days worked.Based on Legislation in Section 22, of the Basic Conditions of Employment ActProof of IllnessAn employer may require a medical certificate before paying workers who are absent for more than 2 consecutive days, or who are often absent (more than twice in an 8-week period).Based on Legislation in Section 23, of the Basic Conditions of Employment Act

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## tec0

> *Basic Conditions of Employment Act, 1997 (No. 75 of 1997)
> Chapter Three: Leave
> 22. Sick leave*
> 
>  1)       In this Chapter, "sick leave cycle" means the period of 36 months' employment with the same employer immediately following--
> 
> a)       an employee's commencement of employment; or
> 
> b)       the completion of that employee's prior sick leave cycle.
> ...


The above is your basics towards sick leave. That said I am sorry to say that you will probably get the sharp end of a stick if you try to dismiss an employee on illness. That said I would rather go for a less popular approach.

IF "*please note the IF*" you wish to dismiss this employee "cold as it may sound" do so via admin and get some legal advice. As far as I can remember you can use poor work performance as a reason for dismissal.     

It is a bit underhanded and I honestly don't recommend it. But if it becomes your only option it is your only option I am sorry to say. 

Good luck...

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## Dave A

This is pretty important given the _new employee_ status:



> However, during the first 6 months of employment, workers are only entitled to 1 day of paid sick leave for every 26 days worked.

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tec0 (30-Oct-11)

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## tec0

> 3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked.


Yes however sometimes it is worth it to give the employee a bit more especially with this kind of illness. Firstly it shows compassion, secondly "if properly documented" it shows that you acted within reason towards the employee" and that "may" "*please note the may*" help if you need to take other actions.

In reality it is times like this I wish medical services could just be free honestly... This person shouldn't be working. There treatment and welfare should be the responsibility of our government.

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## adrianh

Send Sterne.Law a PM - I am sure that he will give you a factual legal answer.

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## Pap_sak

cheers for the help guys. she is going in for an op and will probably be off for around a week - have no problem giving that to her and if needed will happily give 2 weeks. I just had a bit of a nightmare thinking of 3 - 4 months sick leave.

As said, if she has to pay for this she might as well resign - would be way cheaper and less stressful. Depending on the reason i was wondering if she would get UIF?

Besides that:

On Friday went to check up on the shop - seeing the profit percentage was quite low I was checking on sales. Absolutly furious to find out that they had been handing out thier staff discount (a huge 37%, my cost) to some friends. This is a shop that has just started, making a small loss and is costing me money. This is the 3rd quite serious incident and was very close to firing them both.

I think I need to stop trying be my staff's "friend/understanding boss" - time to be just " the boss". I have always had this idea of sharing the profits with my staff - and it works brilliantly in one of my shops.

Time to move online...

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## AndyD

> Absolutly furious to find out that they had been handing out thier staff discount (a huge 37%, my cost) to some friends.


That's basically theft. I would go through the disciplinary proceedure and deduct the shortfall from their wages.

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AmithS (30-Oct-11)

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## tec0

I stand to be corrected but isn't "deducting" money from someone's pay illegal?

I remember about 3 years ago now that employees in a motor work shop were forced to give up 15% of their pay because someone stole tools. So the owner forced everyone to give up 15% of their pay AND continued to deduct the 15% even after the tools where paid for in full. 

One of the mechanics got sick of it and consulted a lawyer. After about two months the owner got a summons. If I remember correctly he had to pay the money back. Agreed the CCMA would have been cheaper and all that but the mechanic in question did get his money back.     

As I understand it you must get the consent "written consent" of the employee to do so.

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## Justloadit

What the LRA and CCMA and unions has brought into the mix, is this total irresponsible, inefficient, careless attitude from employees - because "we can not get fired", we need a "hearing", and I must get three warnings for the same thing before I can get overly concerned that something might happen to me, and, I probably will get 6 months of wages anyway. The employee, knowing that the employer is short of cash, and probably does not have the time to spend at the CCMA, means that I can carry on regardless with no consequences for my actions.

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## Pap_sak

> That's basically theft. I would go through the disciplinary proceedure and deduct the shortfall from their wages.


They don't earn very much (retail) plus I didn't really loose - so I won't go down that route. They now cannot give discounts higher than 10% and all staff purchases must go through me. I give my staff a lot of freedom - some can handle it, others cannot. Just have to reel in those that cannot...

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## adrianh

Difficult one - you allowed staff discounts. Per chance you found that they were passing through their discounts to their friends. But the could have done that anyway - they buy the product themselves and then sell it on to their friends from their home. I think the best is not only to limit the discount but also to limit the value of their puchases per month i.e. you may only spend R500 in the shop in a month or some or other reasonable figure. This way they score a bit but there is no incentive to sell the products on. You could tell them that your accountant said that this needs to be done so that you can budget you cashflow / profitability or something like that.

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Pap_sak (03-Nov-11)

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## roryf

I had a problem with staff discount when I took over a company 4 years ago.The staff were basically buying for 'themselves' and the 'family members' our customers were taking the product home for them.The customers were then paying my staff members a small fee to buy for them at a 25% discount.

I stopped offering staff discount all together and saw a remarkable increase in my profits.The staff complained like hell, but when I told them why I was taking it away they had VERY little to say!

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Dave A (31-Oct-11), Pap_sak (03-Nov-11)

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## Pap_sak

> That's basically theft. I would go through the disciplinary proceedure and deduct the shortfall from their wages.


To be honest, it's not the "theft" that bugs me (and you right, it is theft) it's the abuse of trust that actually hurts. I give my staff a percentage of turnover after I get R3000 p/m per shop...they get around 12% of profits(shared between 2 for that shop). plus they get stock for themselves at cost (the norm is around 15%), my staff also get slightly above retail wages in rural areas where unemployment is very high. They also only see me generally once a week for a couple of hours...also, am sure, is a plus!

As said, some handle it well and thrive - one of my shops just thrives on this system..I might have to go through the slog of getting a bigger shop because we've out grown the old shop and i have no problem with them earning more in commissions than their standard pay.

anyway, I have given them their last warning...as it stands I could probably do as well if i personally just opened the shop Fridays and saturdays, and it's an option I have thought of...

But besides them "taking the piss" and having done a few stupid things, they seem to be decent workers that take a fair amount of pride in the shop and have heard a couple of good comments from customers. So worth another go.

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## wynn

Would it be an option to install cameras in each shop?
Ones that you can dial in with a cellphone to see what is going on and can download stored video to see exactly what has happened?

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## Pap_sak

Hi wynn - it is something I have thought of (well cameras anyway, haven't seen the ones you are talking about)...I am sure it would stop a fair amount of mucking around. I guess I should revisit all the options.

I am slightly "cranky" at the moment - I have just gone through my 6 "bad" months and  money is particularly tight at the moment - role on December!

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## tec0

A suggestion, allow your employees to buy a high value item "one high value item" once every 8 or 12 months at cost. Allow them to pass this item on if they so wish and or allow them to keep this item for themselves and or even sell the item and allow them to keep the profit. 

There is really no harm then? Advertisement cost a lot and you are basically getting it for free. Yes you may lose let's say a few items once a year BUT the use of the item will be noted and inquired about. Meaning others see it want it and you got it in stock. Free advertisement at your disposal.

just a thought...

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## Pap_sak

As long as they buy the item for themselves or child and do not go wild on their account I have no problems with it. It occasionally hurts when I get a product in that they all take, but, TBO, I probably should have got more in, it's more a case of bad buying on my part.

But it's a "perk", that as long as it's not abused, will happily let it go.

The one shop is in "lock down", the other two are fine, and am not going to let one shop influence how the others are run.

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## daveob

You could also link the perk to a points system. Start with, say, 1000 points per employee per month.

They can buy R1000 goods at discount / cost.

Take a day off, minus 100 points.
Arrive late minus 30 points.
Talking on cell phone during working hours minus 25 points.

you get the idea.  Make the reward directly linked to performance and dedication.

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## sterne.law@gmail.com

Greetings -
Dave is correct on the first 6 months sick leave allocation. The 6 week allocation (or 3 year allotment) becomes due after the sick months, ie in effect could be taken in advance.
in terms of any dismissal/contemplated dismissal you would need to look and follow the code of good practice on ill health. in a nutshell attempt to accomodate. As an example if she needs two months for treatment you would need to accomodate her, particularly because she does not fill a highly skilled position that would be difficult to fill on a temporary basis.
the norm of no work no pay applies.
UIF - as she has not been in your employ for long, there will not be much there unless she was previously employed and thus built up some credit. (in which case an undertsanding between you and her could be worked out...allowing her to claim and when ready to return to work)
In terms of hospital treatment at a government hospital - she should not be paying. It will not constitute emergency treatment but the right to health care still stands. It is a right that can be limited if the hospital can show a reasonable and rational reason (See Soobramoney vs KZN minister of health)

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Pap_sak (22-Nov-11)

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## Citizen X

Hi there,
I know that some may think my suggestion to be insensitive, cold and perhaps way out of line.
Legally, in terms of the labour relations act 66 of 1995, you can dismiss this individual on the grounds of "incapacity". This is sen by the courts as a " no fault on the part of the employee" dismissal. The rationale is that if an employee is too sick to work, the employer need not tolerate this. That said, all procedural aspects still need to be followed, and the employee's uif forms signed etc. In certain illnesses, an employee may be eligible for a disability grant.
In law there are only 3 categories that are recognised for dismissal: 1-misconduct, 2- incapacity and 3-operational requirements.
Hope this helps

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Dave A (13-Dec-11)

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