Introduction
It goes without saying that the proper management of sick leave is important in any business. The abuse of sick leave has a detrimental financial impact on employers but may also impact the efficiency and performance of a business as well as placing strain on other employees, who must pick up the slack.
An employer is entitled to query sick notes and depending on the circumstances, reject them and take disciplinary action against the employee where the employee have been found to be intentionally dishonest or submitted a fraudulent sick note.
The Courts have consistently held that the fraud and dishonesty committed by employees is serious and patently undermines the trust relationship between the employer and employees.
In 2001, in Legal Aid South Africa v. Ockert Jansen, the LAC confirmed that the Legal Aid Board fairly dismissed an employee who altered the dates on a medical certificate.
In 2020, in Woolworths v. CCMA and Others, the LAC held that Woolworths fairly dismissed an employee who had been booked off sick but then attended a rugby game on the same day.
In 2020, in G4S Secure Solutions SA (Pty) Ltd v. CCMA & Others, the Labour Court concluded that G4S Secure Solutions SA fairly dismissed an employee who had submitted a medical certificate that he knew was not genuine and that he obtained without seeing a medical practitioner.
In 2024, in South African Revenue Services v. CCMA and Others, the Labor Court upheld the dismissal of an employee from the South African Revenue Service who was booked off sick but then attended a protest march called by the Economic Freedom Fighters.
In May 2024 the Labor Appeal Court (LAC) judgment, Sibanye Rustenburg Platinum Mine v. Association of Mineworkers and Construction Union obo Sono and Others handed down in May, the Court confirmed that forging a sick note and providing it to your employer constitutes serious misconduct and serves as a fair reason for dismissal.
Where an employee knowingly submits a fraudulent medical certificate, dismissal may be justified but what happens when an employee visits a genuine medical doctor where the doctor has conducted themselves unethically and/or possibly illegally?
Let's consider a decision of the Labour Appeal Court in Woolworths (Pty) Ltd v CCMA and others (JA90/2022) [2024] ZALAC 29 (13 June 2024) delivered on 13 June 2024 where the courts have considered if the dubious conduct of doctors can be attributed to employees.
Background
Ms Maseko was employed at a Woolworths store in Emalahleni. Maseko did not attend work for four days in June 2018. On 26 June 2018, Maseko submitted a medical certificate from Dr. Frempong as proof of her illness. The store had received an email warning of the issuing of suspicious medical certificates by a Dr. Frempong.
During the internal investigation, two members of store management went to Dr. Frempong’s practice to investigate the certificate. Dr. Frempong confirmed to them that Maseko had seen him on 26 June 2018 and that he had signed the medical certificate that she had produced.
While there, they observed what they believed to be people buying medical certificates from him. People would enter Dr. Frempong’s consulting rooms and return less than a minute later with medical certificates. While they were there, two gentlemen came in. They were asked, in relation to the issuing of medical certificates, how many days they wanted and were charged R250 for a medical certificate. When they met with Dr. Frempong, he had a number of signed medical certificates on his table and a stamp. His table was untidy, and he was not dressed as a doctor. He was disheveled and had long fingernails.
Store management concluded that Dr. Frempong was not a real doctor and was of the view that Maseko had not been sick and that she was dishonest in claiming sick leave.
At the disciplinary hearing, Maseko’s evidence was that she went to see Dr. Frempong as she was not feeling well. She did not suspect anything to be amiss and her submission was in line with company policy. She denied that she had been dishonest about her absence from work.
Dr. Frempong was also called as a witness. He denied selling sick notes or giving sick notes to people who were not sick. He saw Maseko on 26 June 2018 and issued the medical certificate for that day. He also averred that he was registered with the Health Professions Council of South Africa (HPCSA).
Evidence led by the company at arbitration was that Dr. Frempong and Zanele (a nursing assistant) had been arrested for illegally operating a surgery, dispensing medicine, and issuing sick notes.
Maseko was dismissed for allegedly breaching company policy by submitting an irregular medical certificate in circumstances where the company believed that her absence from work was not because she was ill.
The CCMA’s Finding
The arbitrator found there was no evidence to prove that Maseko was not ill in March 2016 and in June 2018. He concluded that the medical certificates submitted by Maseko were valid and regular, having been issued by a qualified and registered medical practitioner and therefore her dismissal was unfair.
The Labour Court’s Finding
Woolworths contended that the arbitrator had failed to appreciate the glaring and obviously dishonest version of Maseko and had failed to consider the recorded evidence. The Labour Court found that on consideration of all the evidence before the arbitrator, their submission was unsupported.
The Labour Appeal Court's Finding
Woolworths took the matter further and appealed the Labour Court judgment. The appeal was based on the arbitrator not properly considering the evidence of the two members of store management and ignoring the “untoward” happenings at Dr. Frempong’s surgery with respect to the issuing and purported buying of medical certificates.
The Labour Appeal Court (LAC) did not accept this argument and felt that if it accepted this argument, it would result in all employees who may be genuinely sick, and who may not be aware of the doctor’s irregular activities, being subjected to a disciplinary process for using that doctor.
Furthermore, the company did not present any evidence to show that Maseko knowingly obtained an irregular medical certificate and used it to validate her absence from work, that she tampered with the medical certificate, or that she misled the doctor about her illness.
The LAC also rejected the hearsay evidence about other people buying medical certificates at Dr. Frempong’s surgery, as it had nothing to do with Maseko (even if it were true).
The LAC found that, based on the evidence before them, the arbitrator’s finding that there was no evidence to show that Maseko was not sick when she visited Dr. Frempong’s surgeries was unassailable, as was their acceptance of Dr. Frempong’s evidence about his qualifications and experience since it was not challenged by the company in the arbitration hearing.
Conclusion
Woolworths focused more on the alleged misconduct of the doctor, who issued the sick notes, than on the employee when they were making their case.
This case shows that employers need to tread carefully when making their case – it illustrates the importance of drafting appropriate charges for disciplinary, presenting evidence at the arbitration hearing, and challenging the evidence presented by the other side.
Comments