According to a report in last Friday’s edition of the Barbados Advocate, The Honourable Minister Of Labour, Social Security and Human Resource Development, Dr Esther Byer, is of the opinion that the time has come for the reform of sickness benefits for employees in Barbados. According to the article, she is persuaded that if that entitlement is to remain a viable option for Barbadians, “greater measures must be implemented to protect it and to stamp out unsavoury practices of inappropriate claims”
The right to sickness benefit for employed persons is part of the ILO Decent Work agenda through the enhancement of the social protection floor that seeks to insulate workers from vulnerabilities and contingencies at work, whether these arise from unemployment, loss of livelihood, sickness or old age.
Barbados has chosen to employ a system of national social security only in this specific regard, unlike some of our regional neighbours who provide for sick pay as an employment right through statutory enactment. For example, section 131 of the Belize Labour Act provides-
“Where any worker who has been employed by the same employer for an aggregate period of not less than sixty days in the preceding twelve months falls ill while in the employment of the said employer, and the illness was not caused by his own default or misconduct, the employer shall grant to the said worker, at his request, sick leave with pay for a period of up to sixteen working days in any twelve months and the employer shall pay the worker in respect of any such period of sick leave at the rate corresponding to his total remuneration over the last sixteen days of his employment with him”.
Cognate legislation is to be found in the British Virgin Islands, The Bahamas, Antigua & Barbuda and St. Lucia.
Any removal of this benefit locally would therefore have a deleterious effect on all workers who may lose income through absence from work because of illness except, of course, those whose terms of employment expressly or impliedly provide for sick pay in that event and those who are covered by insurance policies that indemnify for lost wages. Further, it would place Barbados in a compliance deficit so far as the decent work agenda is concerned.
It appears as if the rationale for the current threat to the status quo is that Barbadians make claims for twice the number of sick days and also twice the sums for payment when compared to the rest of the region. While this actuality may be acknowledged as a clear and present danger to the sustainability of this benefit, it is further contended that it may be owed to the fact that some local doctors issue many more sickness certificates than the average; and that some patients treat the sick days as an entitlement that they frequently use as vacation days and not for genuine sickness.
These two not unconnected phenomena have for long been the seemingly intractable bane of this aspect of the current social security system and it is at least doubtful whether the situation may, or can be arrested anytime soon. First, as it has been put, the issuance of more certificates than an assumed average by some doctors does not necessarily raise a presumption of sharp practice and, even if this were to be established, it would require a contestation of the validity of the certificate; itself a matter of professional medical opinion.
Indeed, in no fewer than two local cases, employers have attempted to challenge the validity of sickness certificates on what would appear to be justifiable grounds, only to fail in both their claims for varying reasons.
In one case, the employee, a telephone operator, presented to her employers a medical certificate of incapacity to work in which the doctor stated that she was suffering from a respiratory tract infection,. When discovered working at a restaurant one evening during the period of sick leave and having admitted that she had worked five of the seven days for which she had been given certified sick leave, she was dismissed for dishonesty.
Her claim for wrongful dismissal was upheld by the magistrate in the lower court and she was awarded $14, 000. On appeal, it was held unanimously by the Court that the employee worked at the restaurant at times when she would already have left work at the employer; that there was nothing to show that the employee was fit to work at the employer’s establishment and that nothing precluded her from engaging in other employment that did not conflict with her duties to her employer. Clearly, establishing that the employee was fit for work would have involved a direct challenge to the certificate; a matter that would have necessitated expert evidence on the nature of the illness.
In the second matter, the employee also presented to the employer a Medical Certificate of Incapacity to work by reason of back pain and that she should be able to resume work in seven days. The employer alleged that during the period of sick leave, the employee stopped in at a hair salon in Bridgetown and braided a client’s hair. She was subsequently terminated on the f ground that she was “guilty of working in spite of being on sick leave”. The employee was held by the Magistrate to have been unjustifiably dismissed. On appeal, their Lordships, citing extensive authority, referred to the probative value of the medical certificate –
“In general, a doctor’s recommendation that an employee take time off work, which is promptly communicated to the employer, is a full defence to dismissal for absenteeism. The employee must, of course, refrain from making misrepresentations as to the medical recommendation and must supply at least basic information about his or her medical situation upon query by the employer…”
Nevertheless, they noted;
However, in some cases, even a doctor’s recommendation or certificate is less than conclusive proof of the bona fides of an employee’s temporary absence from work. (emphasis added)
And later referred to a decision cited by the employer that denied the inviolability of the medical certificate –
“In paragraph 4 the Tribunal seems to have taken the view that since Mr. Hutchinson had produced a sick note it was no concern of the employers to challenge whether or not he was in fact sick. They say ‘it was not reasonable of the employer to go behind that sick note’. To make clear what they mean they go on to say that the employers were not concerned with where he was or what he was doing. That, in our view, is a total misapprehension. The employer is concerned to see that his employees are working, when fit to do so; and if they are doing things away from their business which suggests that they are fit to work, then that is a matter that concerns them. We therefore feel again that the Industrial Tribunal has approached this part of the case also on the wrong basis and their decision cannot stand”.
Although it was not the basis for their final decision, their Lordships regarded the proposition in the cited case as irrelevant, since it was concerned with the unfairness of the dismissal for which there was no equivalent in Barbados at the time of the decision. That position has now been altered however and the case in question remains authority for the proposition that “an employer is entitled to look behind a doctor’s certificate or a self-certificate if he suspects that the employee is not actually ill, misuse of such a certificate being a disciplinary offence”.
Ultimately, the Court did not agree that the mere presence of the employee in the salon while on sick leave constituted an act of dishonesty justifying summary dismissal, leaving open for future decision, “based on appropriate facts, the circumstances in which an employer can go behind a Medical Certificate of Incapacity for Work and summarily dismiss an employee”.
These cases do not deny therefore that the issue remains one of medical evidence if the veracity of the certificate is to be challenged. Statutory provision may now have to be made in this regard if we are to avoid the extreme step of abandoning the scheme altogether. The St Lucia solution may be instructive-
Where there is an issue relating to —
(a) incapacity due to a job related illness or injury leave;
(b) abusive sick leave;
(c) medical certificates issued for the purpose of sick leave, injury at work, illness connected with pregnancy, illness or injury determined to be sufficient for termination of employment in accordance with this Code; or
(c) any other medical matter;
the issue shall be determined by the Tribunal having regard to the recommendation of a medical committee established pursuant to section 428.