In terms of section 23(1) of the BCEA (Basic Conditions of Employment Act), an employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period, if the employee does not produce a medical certificate stating the employee was unable to work for the duration of the employee’s absence on account of illness or injury.
Section 23(2) of the BCEA provides that the medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose, treat patients and who is registered with a professional council established by an Act of Parliament.
In Keviets Kroon Country Estate (Pty) Ltd and Mmoledi & Others (LAC) (JA78/10), the matter of traditional healer certificates and whether it complies with section 23(2) of the BCEA was encountered. In the above mentioned case, the employee was dismissed for staying away from work (unauthorised absence), however the employee had a traditional certificate which stated that the employee was unable to work for the duration of 1 month. The CCMA, Labour Court and Labour Appeal Court declared the dismissal to be unfair. The Labour Appeal Court further stated that the Constitution recognises traditional beliefs and practices, therefore employers should attempt to reasonably accommodate employee’s beliefs.
The traditional healer certificate, however, did not comply with section 23(2) of the BCEA, as traditional healers are not medical practitioners and are not registered with a recognised professional council. Therefore, traditional healer certificates are not accepted as paid sick leave. It is important to note that this does not apply to every sectoral determination or bargaining council as certain collective agreements make provisions for traditional healer certificates.
In May 2014 a proclamation was made giving several provisions of the Traditional Health Practitioners Act of 2007. One of the provisions was the establishment of the interim Traditional Health Practitioner Council of South Africa (THPCSA). However, the Minister of Health has not too date, promulgated the relevant regulation required to bring traditional healer certificates in line with the BCEA requirements. Therefore, employers do not have to pay employees who produce traditional healer certificates as proof of absence. Employers should however, accommodate traditional healer certificates on its merits before taking any action against the employee.
Article by: Ryan Chetty
CEO Dispute Resolution Official: Durban