A medical practitioner’s medical certificate must fulfil specific requirements to be deemed a lawful medical certificate. The certificate should state that the employee is unable to perform their work duties due to sickness or injury. The medical certificate is required to be signed by a medical practitioner or any other person who is certified to diagnose (such as a registered nurse or traditional health practitioner) who is registered with a professional council.

The medical certificate should further contain the medical practitioners’ credentials, the employee’s identification, the date and time of the consultation, whether the diagnosis was made because of direct observation by the practitioner or as the result of information received from the patient, a brief description of the medical condition, whether the employee is entirely unable to perform their duties and the duration of the recommended sick leave. The certificate should be signed and dated, and the practitioner should be easily identifiable.

The abuse of sick leave is an age-old burden for employers. It is estimated that absenteeism costs South Africa R12 billion rand per year.

The recent Labour Appeal Court judgment of Woolworths (PTY) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA90/22) (2024) ZALAC 29 has raised the bar for employers to provide evidence in instances where employees are charged for submitting fake medical certificates.

This case shined a spotlight on the importance of a valid medical certificate, the grappling challenges employers face regarding the misuse of sick leave and the recourse employers have at their disposal.

THE FACTS

The employer suspected that the employee was submitting fake medical certificates. The employer had previously issued electronic correspondence warning employees about a specific medical practitioner who was allegedly selling fake medical certificates. When the employer was presented with a medical certificate from the practitioner in question, an investigation ensued. It was also discovered that the applicant had previously submitted a medical certificate from the same practitioner.

The employee was then charged with contravening company policy and procedures by submitting an irregular medical certificate. The employee was subsequently dismissed.

During the investigation, the employer sent two investigators to the medical practice.  The investigators reported that the practice did not purport to be a medical practice. Patients would spend less than a minute consulting and returning with medical certificates. The medical practitioner’s office was an untidy makeshift room with no resemblance to a medical practice. The investigators heard patients request medical certificates and patients being asked how many days they wanted to be booked off for. From this investigation, they suspected that the practice was selling fake medical certificates.

THE ARBITRATION AWARD

The CCMA commissioner stated they needed to establish whether the applicant’s medical certificate was irregular. It was further paramount for the commissioner to determine whether a registered medical practitioner had issued the medical certificate. Based on the evidence presented by the employee, these requirements were met, and the commissioner deemed the dismissal unfair.

THE LABOUR COURT

The Labour Court found that the commissioner’s decision was not one that a reasonable decision-maker could not reach and that it was a reasonable decision justified by the evidence presented to the commissioner.

FINDINGS OF THE LABOUR APPEAL COURT

Still unhappy with the outcome, the employer took the matter to the Labour Appeal Court. The employer’s issue of contention was based on the alleged untoward activities at the medical practice. The court stated that no evidence was presented proving the employee was not sick when she consulted with the medical practitioner. Further, the medical practitioner satisfied the court that they are indeed who they purport to be and are registered with the necessary council. The court stated that the overarching concern of the employer was how the practitioner chose to run the practice; this had no bearing on the employee and their right to sick leave. The employee’s sick note was not tampered with; she merely presented it to her employer as she had received it.

The Court held that:

“Surely it cannot be that a doctor who is otherwise a qualified doctor who dabbles into some or other illegal activity of selling medical certificates is somehow assumed to be disqualified from examining people and book them off sick untainted by the issues of illegally selling medical certificates. The idea that an employee who happens to go to a doctor who an employer does not trust must be subjected to a disciplinary process for using that doctor is troubling.”

“It is even concerning that an employee who may unknowingly go to what appears to be a doctor’s normal practice and is booked off sick could be dismissed if it turns out the doctor was neither qualified nor unregistered. Ordinary people, including workers, cannot be expected to know if a doctor is qualified, which one is on suspension, and which one is, for some reason, not entitled to practice”.

This case highlighted the responsibility that an employer has when properly investigating the misuse of sick leave. The courts stated that even if a doctor partakes in alleged illegal activity, that doctor is not precluded from examining patients and making decisions based on their medical incapacity. It was highlighted that employees cannot be subjected to disciplinary enquiries if they visit medical practitioners whom employers do not trust. The onus rests on the employer to investigate their suspicions. If there is any basis for the suspicion, employees should be cautioned about that medical practitioner.

KEY TAKEAWAYS

  • The trust relationship is crucial, and as such, employees should avoid positions that could negatively affect it.
  • An employer still has the prerogative to investigate any patterns in sick leave and habitual misusers of sick leave and should provide evidentiary proof.
  • An employer cannot subject employees to disciplinary enquiries based on suspicions.
  • Employers are cautioned to obtain expert advice prior to dismissing an employee for submitting a suspected false medical certificate.

Article by Cass-Leigh Oranje

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)