While the aim of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993) has been stated as – To provide for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases; and to provide for matters connected therewith. – sick leave as a result of occupational injuries or diseases sustained or contracted by employees in the course of their employment, is an area not well covered by legislation or case law.
The entitlement to sick leave is provided for at Section 22 of the Basic Conditions of Employment Act (Act 75 pf 1997) (BCEA). Section 24 of the BCEA is specific in that it states that Sections 22 and 23 of the BCEA do not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993) (COIDA Act), or the Occupational Diseases in Mines and Works Act, 1973 (Act 78 of 1973), except in respect of any period during which no compensation is payable in terms of those Acts.
As the first 3 days of sick leave due to injury on duty is not covered by COID the first three days of sick leave must be in terms of the BCEA.
From the fourth day of sick leave the COIDA Act will apply. From the fourth day up to three months of sick leave must be paid at 75% of the remuneration of the employee at the time of the incident, by the Employer and the Employer must recover these from the Compensation Commission. This is in terms of section 47, read with Schedule 4 of COID Act.
In respect of sick leave beyond three months, the employee must claim the remuneration directly from the Compensation Fund.
There must be a time when the Employee is no longer deemed fit for duty. The process and procedure for Ill Health and Injury Incapacity Dismissals are covered by Clause 10 of Schedule 8 of the Labour Relations Act. This process requires from the Employer to:
- Determine if the inability to work is temporary or permanent;
- If temporary, the extend of the incapacity or the injury:
- How long is the Employee likely to be absent and if such time is unreasonably long;
- Investigate all the possible alternatives short of dismissal;
It is important to note that the onus on the Employer to accommodate the employee is higher in instances where the employees was injured at work or who are incapacitated by work-related illness.
