Sick Leave

Maltese law defines sick leave as leave granted to the employee whenever an employee presents a medical certificate certifying incapacity for work.

Sick leave entitlements vary from one sector to another depending on whether an employee is governed by a particular Wages Council Wage Regulation Order (‘WRO’), however whole-time employees whose entitlements are not covered by a WRO shall, on employment, be entitled to sick leave, of at least the equivalent in hours, of two working weeks in every calendar year on full pay, less an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act. Employers may, should they so wish, seek to increase the sick leave entitlement given to employees, however, may not go below the minimum entitlement in terms of law.

As regards part-time employees, such are entitled to a pro rated entitlement of sick leave on full pay, less an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act, which amount is also to be calculated on a pro rata basis.

In terms of law, the first three days of any claim for sick leave shall be paid in full by the employer and, unless otherwise  provided  in  a  collective agreement, an employee who has been absent from work on sick leave shall be bound to present a medical certificate issued by a registered medical practitioner attesting to the employee’s incapacity for work during any such period of absence and, such medical certificate must be presented to the employer on the day of return to work or, if such period of absence is longer than seven days, within seven days of the onset of sick leave absence.

For employees not governed by a WRO, since rules may vary for those employees governed by WROs, if an employee is in employment for less than twelve months, the employee shall only be entitled to sick leave in proportion to the period in employment.

Vacation Leave vs Sick Leave

Maltese law also provides for the accrual of vacation leave during periods when an employee is on sick leave, in that any balance of annual leave unavailed of by the end of the calendar year shall be automatically transferred to the next calendar year when it has not been possible for the employee to avail himself of such leave during the same year when the sickness commenced.

Furthermore, any period of pre-arranged vacation leave coinciding with a period of sick leave shall be considered as not having been availed of but, shall be availed of after the return to work or, shall be carried on to the subsequent year if such leave could not be availed of during the same year when the sick leave commenced.

Potential Abuse of Sick Leave

It is no secret that employers are constantly battling with abuse or perceived abuse of sick leave by employees, however, the law seeks to address this by providing employers with the right, if they deem fit, to send a medical practitioner to visit and examine an employee who is on sick leave, thereby being able to confirm or otherwise the medical assessment of the employee’s doctor.

In the case of conflicting medical opinions however, employers ought not to rush to the conclusion that the employee in question was abusing of their right to sick leave in terms of law, rather, a thorough assessment and investigation ought to be carried out to determine the best way forward in such scenarios.

Our Industrial Tribunal and Courts have dealt with the issue of abuse of sick leave on varied occasions. One of such cases was in Nagihan Ozer vs Datalogic Limited. In this case the plaintiff filed an unfair dismissal claim before the Industrial Tribunal (‘Tribunal’) wherein the disciplinary issues centred around poor timekeeping, abuse of sick leave, substandard quality of work, disruptive behaviour, damaging of Company property due to negligence, and overall negative influence on the team.

As regards the accusation of abuse of sick leave, this centred around the employee:

1. i. taking sick leave in lieu of unauthorized optional leave;
2. ii. asking for and being granted a meeting with the Company’s Executive Director, such meeting being held at a restaurant, because the plaintiff did not want to meet on Company premises, on a day when she had reported sick, without making the Director aware that she was on sick leave; and
3. iii. being in “neighbouring areas” on several occasions during sick leave.

As regards the plaintiff taking sick leave in lieu of unauthorized optional leave, through witness testimonies, the Tribunal concluded that the plaintiff had applied for vacation leave but that such request for vacation leave was rejected, and instead the plaintiff made use of her sick leave entitlement during the period in question.

In the same way and through witness testimonies, the Tribunal concluded that the plaintiff had indeed attended a meeting outside of the office with the Company’s Executive Director without informing the Executive Director that she was out on sick leave at the time.

As regards the accusation regarding plaintiff being in “neighbouring areas” on several occasions during sick leave, the Tribunal felt that this was not proven by the Company, however also noted that neither was such accusation disputed by the plaintiff.

The Tribunal concluded that the Company had indeed proven the plaintiff’s abuse of sick leave, notwithstanding however, and in view of other considerations made by the Tribunal, the Tribunal concluded that the Company did not have a good and sufficient cause at law to dismiss the plaintiff and proceeded to award the plaintiff Euro 4200 by way of compensation.

It ought to be further noted that whilst the Tribunal’s decision was appealed by the defendant Company, the Court of Appeal opined that the appeal as filed was null as it was not based on a point of law, but rather on appreciation of facts by the Tribunal.

Conclusion

Whilst one may debate whether the above-mentioned Tribunal decision was just or otherwise, it is crucial for employers to ensure full compliance with the law as regards sick leave.

There is no doubt that employers must thread carefully when suspecting potential abuse of sick leave and, must not jump the gun in deciding that any suspected abuse of sick leave would constitute a good and sufficient cause for dismissal in the eyes of the law.

How can we help?

Should you require any further information or assistance on the matter, please do not hesitate to reach out on mattea.pullicino@fenechlaw.com.

©Fenech & Fenech Advocates 2024

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