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Your rights when you are ill

By Staff Writer
Being diagnosed with a dreaded disease like cancer or HIV/Aids involves massive trauma. Besides the medical costs, one has to deal with financial compensation and time off from work. We ask the experts what you are entitled to in such cases.
 
When your working ability becomes restricted
 
According to Johann van der Walt, committee member of the South African Society for Labour Law, if an employee can no longer work as a result of illness, the employer is entitled to terminate that employee’s contract after embarking on an incapacity process.  When Millicent Mulelu was diagnosed with colon cancer in 2004, she was a sales manager for Shell Aviation. The stress of her job combined with the trauma of her illness took its toll on her concentration level. But Mulelu was fortunate enough to be placed in a less stressful position at work while she underwent chemotherapy.
 
“I was lucky that I got to keep my job because I did not have other financial resources. The people at my work were also very supportive,” says Mulelu.
Joel Perry, head of advocacy at the Cancer Association of South Africa, says that if the workplace has a body or union representing its employees, then sick employees can use them to represent their case should they require more time off than the stipulated sick leave.
 
How much time off are you entitled to?
 
According to Van der Walt, you are entitled to a minimum of the number of days you would have worked during a six week period. For example, if you worked five days a week it is equal to 30 days sick leave, if you work 6 days a week, it is equal to 36 days sick leave. 
 
“This period is applicable to a three year sick leave cycle. This is the minimum in terms of the Basic Conditions of Employment Act, although some employers may offer more sick leave,” says Van der Walt.
He adds that you may be penalized for absenteeism once you have exhausted your sick leave: Either you may not be paid for the additional days that you are absent, or your employer might decide to embark on an incapacity process against you. 
 
Revealing the status of your illness
 
Samantha Brown was diagnosed with breast cancer a month before she was supposed to get married in 2008. This didn’t stop here from getting married and, after her first bout of cancer, she walked down the aisle. 
But her experience at work was far less encouraging. According to Brown, her manager at the time revealed her condition to the rest of her colleagues without her permission.
 
According to Perry, when it comes to the life-threatening disease of an employee, absolute confidentiality must be observed.  
“Should senior management find it necessary to break confidentiality, it must be with the full consent of the employee concerned,” says Perry.
 
Dealing with discrimination
 
Brown was asked by her manager to cover her head at work when she lost her hair as a result of the chemotherapy.
Van der Walt says that in such a case the employee is being discriminated against. “It would further appear that there is no justification for such a request. The employee may possibly claim unfair discrimination, alternatively, if she resigns, she may be able to claim a constructive dismissal,” says Van der Walt.
 
After your diagnosis, speak to your employer as soon as possible 
 
Van der Walt says that it is important to speak to your employer soon after you have been diagnosed, in order for them to make the necessary arrangements and to ensure that they do not prematurely start with an incapacity process.
Mulelu says that once she had told her employer about her diagnosis, much of her stress at work was alleviated. She was introduced to the company’s employee assistance program where she received counseling to deal with her illness.
 
What to do when you are diagnosed with a dreaded illness:
 
According to Van der Walt, one of the common mistakes sick employees make is to use up all their sick leave. This leaves the employer with no alternative but to embark on an incapacity process.
 
Brown says she made sure that she knew what her rights were in the workplace and how to get through any unexpected work and insurance-related red tape.
 
Make sure you understand your company’s policy on dreaded disease.

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