Davies Ndumiso Sibanda
WHILE so much has been written on the subject of light duty, which is given by doctors to unwell employees, it remains problematic when employers object to giving workers light duty for various reasons.
At law, the question of light duty is not provided for in an employment contract because an employee is either fit or unfit to work. However, in different countries, light duty has been recognised to cater for employees who are unwell but can do some work.
In the majority of countries that provide for light duty, there are strict guidelines on how the employee will work and be paid.
In Zimbabwe, our labour legislation does not provide for light duty. As earlier mentioned, it is either the employee is fit or unfit to work.
The main question is whether the employer should keep an employee who is not capable of carrying his fair share or work resulting in productivity loss.
The answer is that the employer is not obliged to keep an employee who can no longer do the work he was hired to do.
Our labour law provides for sick leave and it is the duty of the doctor to prescribe whether someone is fit or unfit to work. The reasonable expectation is that the doctor will ask what kind of work the employee does and thereafter he will prescribe whether the employee goes back to work or remain on sick leave.
It must be remembered at all times that the doctor’s certificates is not a licence to enjoy sick leave but a supporting document when an employee applies for sick leave.
Where the doctor prescribes light duty, the employer has a number of choices. One option to act legally and retrench the employee in terms of the retrenchment legislation and the reason for the retrenchment will be “no longer able to perform duties he/she was hired to do”.
However, such drastic action should be taken after considering the business implications of losing a worker whose skills might be missed. The employer should also consider the length of the proposed light duty, if it is a very short time, the employee might be granted additional time to recover and come back to work.
Secondly, the employer might choose to put the employee on short time from a humanitarian perspective. However, in terms of law he will still have to pay the employee a full salary unless the two mutually agree on reduced salary.
The whole thing is clouded by the fact that the employee given light duty strictly speaking is still unwell and is entitled to sick leave but the doctor has recommended that going back to work is a better option.
Many employers would rather have the workers at work than stay at home where there are prospects of full recovery. But at times the challenge is that most workers who claim light duty will have exhausted sick leave. In conclusion, employers must seek expert advice before dealing with light duty cases.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] cell No: 0772 375 235