Jeff_Cumberbatch

The Jefferson Cumberbatch Column – How Ill Are You Really?

Esther Byer, Minister of Labour

Esther Byer, Minister of Labour

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.

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100 Comments on “The Jefferson Cumberbatch Column – How Ill Are You Really?”

  1. FearPlay August 29, 2016 at 12:12 PM #

    Will the minister also be paying attention to the number of days that members of government AND members of the opposition do not attend sittings of the house and also, how many ministers are away from the office during the day and are not in pursuit of official duties? Oh I forgot, that doesn’t matter.

    Like

  2. ac August 29, 2016 at 12:41 PM #

    Most if not all understand the causes of work related sickness however the problems related to sick leave are endemic giving cause for worry and concern as those problems becomes burdensome to govt and eventually passed on to taxpayers.eventually those who should or might have to benefit from the plan might find that there are no benefits from which they are somewhat entitled.
    That is the problem.No one is faulting those who get sick for acessing their benefits but a system that has run a mock with unscrupulous characters and a probability of unable to be of service to anyone
    But then again yardfowls like to eat nuff nuff scratch grain to satisfy their bellies and their craw

    Like

  3. Artax August 29, 2016 at 1:31 PM #

    ac August 29, 2016 at 12:41 PM #

    “But then again yardfowls like to eat nuff nuff scratch grain to satisfy their bellies and their craw…”

    And this is demonstrated by you, as usual, going all out to defend the DLP. In this case you are defending Esther.

    Like

  4. millertheannunaki August 29, 2016 at 1:32 PM #

    @ ac August 29, 2016 at 12:41 PM
    “No one is faulting those who get sick for acessing their benefits but a system that has run a mock with unscrupulous characters and a probability of unable to be of service to anyone
    But then again yardfowls like to eat nuff nuff scratch grain to satisfy their bellies and their craw”

    No worker can claim sickness benefit from the NIS unless the period of sickness is certified by a “competent” and registered medical practitioner.
    Why blame the workers? Or are you implying there is some kind of unholy alliance scheme between the workers and the doctors to defraud’ the NIS?
    Is there also some kind of unholy alliance between the same doctors and the SSA under the astute leadership of Dr. Lowedown to create conditions to make Bajans sick in order to increase their revenue streams and help bankrupt the NIS sickness benefit fund?

    Why can’t you see it from another of your yard-fowl cock-eyed angle and realize the Minister is just preparing the wicket to justify a rise in the National Insurance contribution rates as demanded by the IMF the same way the Social responsibility levy was imposed as a done deal of a dose of IMF stringent measures?

    Like

  5. David August 29, 2016 at 2:40 PM #

    @Miller

    Who sends the message to employees / workers they need to share in maintaining the integrity of the social security system?

    Like

  6. millertheannunaki August 29, 2016 at 3:39 PM #

    @ David August 29, 2016 at 2:40 PM
    “Who sends the message to employees / workers they need to share in maintaining the integrity of the social security system?”

    The same leaders that are sending mixed messages to the youth about getting babies to ensure the long-term integrity of the NIS especially the contribution-based pension scheme.

    Why tell young people to use condoms (promoting the use of contraceptives) while asking the same unemployed youths to have babies they can’t feed or socialize properly? Any message about having babies without the necessary incentives should be targeted at those well-educated career women and men not those who depend on child support payments (cock tax via the courts) from deadbeat sperm donors. Barbados does not need any more children to be born into poverty but more incentives for the working people to provide for their old age and medical care.
    The Muslims of East Indian heritage are doing jolly good job of keeping Bim in a steady-state population growth mode.

    The political managers of the NIS need to increase both the rates and the level of insurable earnings to say $10,000 per month if the nightmare scenario awaiting the baby boomers which Walter Blackman has so vividly painted is to be avoided or at least mitigated.

    Like

  7. Georgie Porgie August 29, 2016 at 3:41 PM #

    THERE SEEMS TO BE 4 ENTITIES INVOLVED HERE BUT AS USUAL THE BU MORONS CAN NOT EVER MAKE A BALANCED ARGUMENT

    1THE DR CAN ONLY BENEFIT FROM ISSUING SICK LEAVE FORMS IF THAT IS A MAJOR SERVICE OF HIS BUISINESS OR AS ONE OF HIS BOOK KEEPING TECHNIQUES. WONT ELABORATE ON THAT, AS THAT IS NOT TAUGHT IN MED SCHOOL LOL

    2 IT IS THE PATIENT WHO PAYS THE MOST NIS WHO BENEFITS MOST FROM A SICK LEAVE NOTE I AM TOLD . I AM TOLD THAT MANY IN THE TOP ECHELONS INCLUDING THE POLITICIANS SEEK TO GET BACK MONEY THEY PAID IN TO NIS THIS WAY. GO FIGURE.

    MOST OF THE LOWLY PAID PERSONS WHO SEEK SICK LEAVE DO SO IF THEY HAVE A SERIOUS INJURY AND ARE ADVISED BY LAWYERS TO GET A PERIOD OF SICK LEAVE. SUCH FOLKARE OFTEN ALSO BEING HARRASED IN SEVERAL WAYS ON THE JOB INCLUDING SEXUALLY

    3 THE EMPLOYERS CMAY TEMPORARILY HAVE TO DO WITH THE SLAVES THEY ARE MISTREATING, UNDER PAYING AND OTHER ISSUES

    4 NOW NIS HAS A PROBLEM BECAUSE A- SO MANY FOLK LAID OFF THEIR RECEIPTS ARE LOW, B LOTS OG RICH EMPLOYERS NOT PAYING IN NIS. C NIS THIEF THE MONEY OR OTHERWISE MIS-APPROPRIATED THE USE FOR WHICH THE MONEY WAS INTENDED

    THE SCAPE GOAT IS NOW THE DRS WRITING BOGUS SICK LEAVE CERTIFICATES

    WHAT I FIND HILARIOUS IS HOW ANY OF WUNNAH CAN DECIDE A SICK NOTE IS BOGUS UNLESS WUNNUH SEE OR LISTEN TO THE PATIENT

    NONE OF WUNNAH IS DOC MARTIN ….WHO IS A DIAGNOSTICIAN OF THE HIGHEST ORDER

    MILLER millertheannunaki August 29, 2016 at 1:32 PM # YOU HAVE ASKED SOME SERIOUS QUESTIONS WORTHY OF CONSIDERATION

    WHAT I FIND FUNNY IS THAT CARRINGTON HAS BEEN LOOKING FOR DRS TO LOCK FOR ABOUT 20 YEARS NOW FOR “BOGUS” SICK NOTES WITH NO SUCCESS. I WONDER
    WHY?

    Artax August 29, 2016 at 1:31 PM #T
    THE PROBLEM IS
    1 THE DEMS MISSUSED THE NIS CONTRIBUTIONS
    2 THE DEMS LAY OFF LOTS OF PEOPLE OR CAUSED NUFF FOLK TO BE LAYED OFF BECAUSE OF THEIR POOR RUNNING OF THE COUNTRY
    3 THIS HAS CLEARLY LED TO A DEFICIT IN FUNDS TO PAY CLAIMS CAUSE NO PAYMENTS ARE BEING MADE BY THE LEGIONS OF FOLK WHO ARE NO LONGER EMPLOYED

    I WILL BET YOU ALL I HAVE THAT THE DEMS GETTING/GOT THEIR CLAIMS PAID FIRST

    NOW NOTE THAT IN ALL I HAVE SAID ……….I HAVE NOT SAID THAT SICK NOTES ARE WRITTEN BY SOME SYMPATHETIC DOCTORS LOL MURDAH

    Like

  8. Georgie Porgie August 29, 2016 at 4:07 PM #

    Donna
    THANKS FOR YOUR KIND REMARKSRE
    RE August 29, 2016 at 10:47 AM # Artax,

    I fear that is too high for some to understand. But correct you are. It seems everything must be seen from the perspective of the employer.

    YOU ARE VERY CORRECT HERE. THAT IS WHY FROM EARLY I USED TO CUSS THEM WHEN THEY CALLED TO QUERRY ANY OF MY SICK NOTES
    WAIT SKIPPER I WOULD SAY
    I NEVER SAW YOU IN ANY OF MY ORAL OR CLINICAL EXAMS AND BRUGGADOWN PHONE DOWN IN THEIR EARS
    AS FOR THOSE WHO RECEIVED SICK NOTES DOING ANYTHING THAT THEY OUGHT NOT TO BE DOING, WHAT DOES THAT HAVE TO DO WITH THE DR?
    DIAGNOSES ARE MADE 98% OF THE TIME ON THE HISTORY

    RE chad99999 August 29, 2016 at 12:07 PM #

    Georgie Porgie is a total ignoramus WHO DESIGNED OUR NHS WHICH HAS BEEN COPIED AND EXTENDED USING MY IDEAS PUBLISHED RIGHT HERE ON BU IN 2008

    Georgie PorgieKNOWS THAT THERE IS NOTHING ABOUT HIS professional conduct as a physician THAT can be questioned by courts CAUSE HE AINT DO NUTTIN TO BE QUESTIONED .He is dead wrong.

    RE Like any other profession, doctors are licensed to serve society,” THIS INCLUDES OCCASIONALLY WRITING SICK NOTES. WHEN THERE ARE EPIDEMICS OF VIRAL ILLNESS OR WHEN THERE ARE EPIDEMICS OF GREAT ANXIETY OR AND DEPRESSION AS CAUSED BY THE DLP GUVMENT SINCE 20008 THE NUMBERS OF SICK NOTES WILL INCREASE

    The fact is that in Barbados, the authorities have delegated much of their authority to various professional RE bodies, so doctors are policing themselves, PLEASE KINDLY GIVE US A CURRENT LIST OF THESE DRS WHO ARE POLICING THE DRS SUH

    RE but that does not change the fact that society, through its “medically illiterate” legislature and it’s “medically illiterate” courts, can evaluate and discipline any doctor we decide is not behaving appropriately.” MAN YOU MUST SPEND MOST OF YOUR WAGES IN TOILET PAPER TO WIPE YOUR MOUTH AND COMPUTER SCREEN
    YOU MAKE AC LOOK LIKE A BDOS EXHIBITION WINNER

    RE David’s suggestion that the Minister should quietly negotiate better behaviour behind closed doors is unlikely to work, because bad doctors are usually as arrogant and conceited as Georgie Porgie, and are not easily brought to heel. WHY DON’T YOU GET THE TOP DLP FOLK WHO USE BOGUS SICK LEAVE NOTES TO MEK A MONEY WHEN THEY COULD NOT GET WUK UNDER THE BLP REGIME

    YOU WANT ME CALL NAMES NOW?

    Like

  9. chad99999 August 29, 2016 at 5:18 PM #

    We definitely need to teach Georgie Porgie a lesson.

    Like

  10. Donna August 29, 2016 at 5:48 PM #

    The Jamaican professor also highlighted sexual harassment as a major source of discontent among workers. So again GP is spot on. The lecture was featured on CBC’s Say it again.

    Like

  11. chad99999 August 29, 2016 at 6:15 PM #

    Sexual harassment is a major cause of discontent among female workers, not male workers.
    Like a dog with a bone, so to speak, today’s feminist does not overlook any opportunities to score points against men and take advantage of issues raised in the metropolitan countries by cynical, power-hungry white women looking to make money by filing civil lawsuits against wealthy corporations. What a scam!

    Like

  12. Georgie Porgie August 29, 2016 at 6:25 PM #

    Donna August 29, 2016 at 5:48 PM #
    sexual harassment Is a major source of discontent among FEMALE workers ESPECIALLY IN ECONOMIC CLIMATES SUCH AS WE HAVE HAD IN BIM SINCE 2008.

    Like

  13. peterlawrencethompson August 29, 2016 at 10:26 PM #

    @ chad99999

    Sexism is the moral equivalent of racism.

    Like

  14. Colonel Buggy August 29, 2016 at 11:29 PM #

    When are we going to follow some of the other countries and offer maternity leave to fathers?Perhaps , this question would be best answered by Ministers Jones and Durant.

    Like

  15. chad99999 August 30, 2016 at 2:00 AM #

    Peter Lawrence Thompson,

    Your statement is utterly misguided. Women have never been oppressed, and when compared to what has been done in the past to men, they have always received better treatment. When work and travel were difficult and dangerous, they were spared most of the horrors of work and travel. Today, they work mostly in air conditioned offices assisted by computers, while men have to do what’s left of the heavy lifting — mining, forestry, fishing, military combat, even urban garbage collection. These pampered creatures spend our money as well as their own, and never stop complaining and demanding more for themselves than they leave for men to enjoy. What a scam!.

    Like

  16. Donna August 30, 2016 at 7:36 AM #

    You need to seek a psychiatrist’s help before you degenerate into a serial killer! You have a warped perspective that is very dangerous. I ask again- what kind of mother did you have? Mine worked really hard and contributed equally to the household. She was the Miss Fix it whilst my father was all thumbs.She NEVER cheated on her husband though he didn’t return that faithfulness. She was rather bossy but that was because she was a perfectionist. She was very difficult to live with because of it but she meant well. She had her issues but she was never a taker and did her share of the dirty work.

    There are good men and bad men. There are good women and bad women.

    By the way, remind me of the times I was pampered. I seem to have slept through it.

    Like

  17. Donna August 30, 2016 at 7:53 AM #

    Not all male bosses sexually harass their female employees. Not one of them was stupid enough to try that with me or any of my friends. But to suggest that this NEVER happens is to deny the blatant preoccupation with sex and power that pervades this society.

    Some women will gladly use their “assets” to get a job. Some men will use positions of power to coerce a woman who desperately needs a job or needs to keep her job into granting them sexual favours. Anyone who denies EITHER of these statements cannot see straight and can NEVER give a balanced opinion.

    Like

  18. de pedantic Dribbler August 30, 2016 at 8:21 AM #

    @ chad99999 at 5:18 PM re “We definitely need to teach Georgie Porgie a lesson” . With statements like this one you display the prevailing personality seen daily here on BU (made wildly famous by D.J.Trump) which is described by the many ‘medical illiterates’ as psychopathic; simply meaning: distinctly antisocial behavior.

    What lesson can YOU teach the doc or anyone else when you produce some of the most damning rhetoric on this site, like ” Women have never been oppressed, and when compared to what has been done in the past to men, they have always received better treatment..”

    How selective and ridiculous can you actually be and maintain a straight face of rationality???

    Women were sexual harassed and professionally dominated in the workplace for ages. They were also out there cutting canes, cleaning the road-ways, hawking their garden provisions and other food-stuff in their cook shops and so on. And quite a few of them would be mothers who then had to go back home and deal with their children and TOO prepare a meal and accommodations for their men.

    I may be divorced and may be terribly p’eed off @ my wife and females in general (or not) but regardless I forever appreciate the love, devotion and hard work of my mum and grandmother. So I must temper any anger of the life today with the reality that my memories of yesterday provide.

    Thus it is really incredible to read your continuous unbalanced, factually inaccurate female bashing stuff. As the lady Donna noted, there are good and bad actors across the genders.

    One can only presume that you are either a direct descendant of the famed Romulus and Remus duo or that like them you had a truly rough childhood…you need some warm thoughts of a granny to infuse your rantings. LOLL.

    Like

  19. Georgie Porgie August 30, 2016 at 8:54 AM #

    DONNA
    ONE OF MY FAILURES IN LIFE IS THE OMMISSION TO WRITE DOWN THE MANY STORIES I HAVE HEARD FROM WOMEN WHILE PRACTICING WITH RESPECT TO THE TREATMENT BY THEIR MEN/HUSBANDS

    THESE INCLUDE THE VERY PLEASING ONES OF ELDERLY WOMEN WHO OVERCAME BY PRAYER PATIENCE AND PERSEVERENCE AND THOSE LIKE THE YOUNG WOMEN WHO WAS BEATEN TWO SUCCESSIVE SEPTEMBERS FOR APPROACHING HER CHILD FATHER FOR MONEY TO BUY EXERCISE BOOKS

    Like

  20. peterlawrencethompson August 30, 2016 at 9:27 AM #

    @ chad99999

    You sound very much like Jefferson Davis or a whole host of other historical apologists for slavery… all you have to do is replace the “women” in your rants with “negroes.”

    Like

  21. Donna August 30, 2016 at 9:55 AM #

    GP,

    If the stories are still in your head you can still write them down. You could even collaborate with a good Bajan author to make it a work of informed fiction. It could tell the story of Bajan women. How about that?

    Dribbler,

    I know that angry feeling that comes from being mistreated. Thankfully with the Father’s help I am well on the way to a full recovery. I can now see my mistakes and character flaws and immaturity as well as theirs. Relationships are a complex thing and we all have our issues that need some work. We all bring baggage into the relationship.

    Like

  22. Georgie Porgie August 30, 2016 at 10:21 AM #

    dONNA
    THE STORIES ARE NOT FICTION AT ALL
    BUT I THINK THEY MIGHT INSPIRE WOMEN GOING THROUGH ROUGH TIMES WITH THEIR MEN

    Like

  23. Donna August 30, 2016 at 10:49 AM #

    GP, I know they aren’t fiction but I just thought they’d get more readership if presented as a work of fiction based on true stories.

    Like

  24. Well Well & Consequences August 30, 2016 at 3:26 PM #

    With his reference to Byer like she is some sex toy, Chad clearly sees ALL females as only good for one thing..being sex toys, he is very warped and the blogger most likely to be seen on the FBIs Most Wanted list ….at some point in time, thankfully we will be spared having to tell anyone that we know him.

    Like

  25. Marion Mccullon September 10, 2016 at 6:26 AM #

    ebay japan

    Like

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