Absenteeism is the most problematic form of misconduct because it reduces productivity. Most employers, therefore, require employees who are absent from work due to alleged illness or injury to provide proof, in the form of a medical certificate, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness.
It is an established practice that employers are entitled to require such proof from employees and to discipline absentees who are unable to provide it. Section 23 of the Basic Conditions of Employment Act entitles employers to withhold payment of remuneration if the absent employee has failed to provide a legally acceptable medical certificate proving the employee was ill or injured. However, this only applies where the employee has been absent from work:
- For more than two consecutive days or
- For two or fewer consecutive days recurring three times in the space of eight weeks
Previously, the employer was entitled to withhold payment in the above circumstances and also, at the same time, to issue the employee with a warning for the absenteeism, or to impose more severe discipline, depending on the severity of the case. However, one or two CCMA commissioners have found that withholding remuneration and also disciplining the employee constitutes double punishment. I strongly disagree with this confused view because the purpose of the withholding of payment is merely to satisfy the principle of ‘no work, no pay’, and is not a punishment. However, due to this shift in the attitude of some arbitrators, employers need to beware of how they go about dealing with absenteeism.
Another problematic question is the validity of sick notes issued by traditional healers or sangomas. Generally speaking, employers are not expected to accept certificates issued by persons who are not medical practitioners registered with a council established by an act of Parliament. Many traditional healers do issue such sick notes and some of these appear to indicate that the healer is registered. However, the Department of Health has indicated that the council with which traditional healers could register has not yet been fully set up. It thus appears that employers are not yet obliged to accept medical certificates from traditional healers.
An even more vexed issue is that relating to the genuineness of medical certificates issued. That is, a great many medical certificates submitted to employers appear to have been validly issued by properly registered medical practitioners. However, such certificates are often not what they seem and/or are not acceptable. This is because the employee might:
- provide a genuine medical certificate which does not cover the period of his/her absenteeism or
- amend what was a valid medical certificate or
- obtain a genuine blank certificate belonging to a genuine and properly registered medical practitioner
- and complete it so as to make it appear to be what it is not or
- obtain a certificate from a person masquerading as a medical practitioner.
Where a genuine certificate fails to cover the period of absenteeism, the employer is not obliged to accept it.
Where the employer can prove that the employee has knowingly submitted a medical certificate amended by someone other than the relevant doctor, this can be grounds for a disciplinary hearing for dishonesty. This also applies where the employee has completed a blank certificate and submitted it to the employer.
The situation becomes more complex where it is found that the medical certificate submitted was issued by a fake medical practitioner. It is clear that, should the employer establish this to be the case, it does not have to accept the medical certificate. However, the question arises as to whether, in such a case, the employer can dismiss the employee for submitting such a false medical certificate. The complexity arises due to the fact that the employee may not be aware that the person posing as a doctor is not a genuine medical practitioner.
It can and does happen that people set up consulting rooms and advertise themselves as doctors, despite the fact they have either been struck off the role of the Health Professions Council or have never been registered with this council. Many such charlatans even print fake practice numbers on their certificates so as to make it appear that they are properly registered, medical practitioners.
In many cases, the employee is well aware that the certificate he has obtained is false because he/she has knowingly bought the false certificate without being ill, and/or without having been medically examined. This would justify a case of discipline for dishonesty. However, it is possible that a genuinely ill employee consults someone purporting to be a doctor and then innocently submits the impostor’s certificate to the employer. In this case, the employee cannot be found to have been dishonest and a dismissal would, therefore, be unfair.
Employers, therefore, need to proceed with extreme caution before dismissing employees who submit questionable medical certificates and should get advice on this from a reputable labour law expert.
To book for our 9 November CASE LAW UPDATE seminar in Johannesburg please contact Ronni via firstname.lastname@example.org or 08452174892.