Beware: A doctor’s note won’t always cut it in South Africa
Although the Basic Conditions of Employment Act (BCEA) says that employees are entitled to sick leave as long as they provide a medical certificate as proof, there are instances in which an employer can reject this as proof.
According to Dumisani Ndiweni and Kgololego Pooe from Webber Wentzel, an employer can query the validity of a medical certificate if they suspect foul play, dishonesty or misrepresentation.
In the recent South African Revenue Services (SARS) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others, an employee was dismissed after his employer saw him participating in a protest on television during the two days he said he was unwell.
The Labour Court said that the misinterpretation of the employer’s policy, which did not require employees to submit a medical certificate for two days or less.
“Our courts have made it clear that they will not come to the aid of employees who engage in such dishonest conduct,” Ndiweni and Pooe said.
However, the experts have also looked at how employers can avoid taking the matter to Court in the first place.
When looking at a medical certificate, the employer must see it as hearsay evidence, and it must be considered in terms of the Law of Evidence Amendment Act.
The experts said that this evidence is generally admissible in three circumstances:
- When the parties involved all consent to the admission of the evidence;
- If the person upon whom the hearsay evidence is based testifies; and
- If it is in the interests of justice to admit the evidence.
When a medical certificate constitutes hearsay evidence, it should not be accepted unless:
- Each party, against whom such evidence is to be adduced, agrees; or
- The medical practitioner testifies; or
- It is in the interests of justice to admit it.
In Mgobhozi v Naidoo NO and Others (2006) (Mgobhozi), the experts said that the Labour Appeal Court applied the Law of Evidence Act to medical certificates in the following way:
- “The nature of the evidence to be introduced by a medical certificate is hearsay, and it should be brought in the form of affidavits;
- The reason that medical evidence in the form of affidavits is not provided must be considered because this failure deprived the Court of any elaboration of the widely- and vaguely-stated symptoms contained in medical certificates;
- Due consideration should be paid to potential abuse if the doctor is not prepared to defend the medical certificate or is not prepared to spend time at the disciplinary enquiry;
- The prejudice to the employer if the medical certificate is accepted without expert evidence being led is obviously that the employer is deprived of the opportunity to test the employee through its own practitioner. It puts the employer in a position where it must rely on the vague allegations contained in medical certificates;
- In exercising its discretion whether or not to permit the medical certificate to stand, the employer’s approach may be that, in the absence of an affidavit from the medical practitioner, it is not compelled to consider the medical certificate; and
- Lastly, the probative value of the hearsay evidence should be considered, pertaining to whether or not the employee showed that they were incapacitated to the extent of being absent from work.”
When using these principles in Mgobhozi, the Labour Court, in NUMSA v Kaefer Energy Projects (2022), said that the onus shifts to an employee when a medical certificate is contested.
The employee must show that they were disposed of and to what extent they were incapacitated.
The Labour Court said that the employee failed to discharge this onus when the medical certificate was challenged by the employer.
Thus, The employee could not use the medical certificate to justify their sick leave.
“Depending on the circumstances, the employer is entitled to query or reject the medical certificate and, where necessary, take disciplinary action against an employee who is dishonest,” the experts noted.
“Employers must be proactive and should regularly remind their employees that the abuse of sick leave will not be tolerated, as it may result in disciplinary action.”
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