Dodgy sick notes in South Africa – new court case employers need to know about

A recent decision by the Labour Appeal Court warns employers that they may not dismiss an employee for misconduct based on mere suspicions that the medical doctor who issued the employee with a medical certificate is contravening standard operating procedure.

“The LAC held that in the absence of proof that the employee was not sick or tampered with the medical certificate, the suspicions of the employer were irrelevant to proving the employee’s misconduct,” said Chloë Loubser, an employment law expert at Bowmans.

Loubser tracked and analysed the case, saying that employers need to “tread carefully where they have suspicions about the integrity of an employee’s sick note.”

The case

Back in 2018, a Woolworths employee submitted a medical certificate issued by a doctor who the company was already suspicious of.

Woolworths conducted an investigation, looking into the employee’s file and the doctor, concluding that that the medical certificate submitted was irregular.

It appeared to Woolworths that the doctor was selling medical certificates.

The employee was charged with misconduct for breaching company policies and procedures to justify her absence from work. She was found guilty and ultimately dismissed.

As a result, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), where the commissioner found her dismissal to be substantively unfair.

“The commissioner reasoned that there was no evidence that [the employee] was not sick on the days for which she submitted the medical certificates,” and concluded that, based on the evidence of the doctor’s qualifications, experience and registration with the relevant authorities, the medical certificates were deemed valid and regular, explained Loubser.

Woolworths then took the matter on review to the Labour Court, which was dismissed on the basis that it had no merit.

Woolworths then took the decision on appeal to the Labour Appeal Court (LAC).

Woolworths submitted that the evidence, albeit largely hearsay, indicated that there were untoward happenings at the doctor’s medical practice in respect of the issuing and buying of sick notes.

The LAC found no merit in Woolworths’ submissions.

“It found the idea troubling that an employee who obtained a medical certificate from a medical practitioner could be subject to disciplinary proceedings on the basis of an employer’s suspicion that the manner in which that medical practitioner conducted their medical practice was dubious,” said Loubser.

According to Woolworths’ policy, an employee would face disciplinary action even if they were genuinely sick and had no knowledge of any irregularities or illegal activities at their doctor’s practice.

The LAC determined that the key issue was whether the employee visited the doctor on the day in question and whether he provided her with a sick leave certificate. Once this was established, nothing else could be demanded of the employee.

Woolworths’ dissatisfaction with the doctor was deemed irrelevant and as such, the LAC dismissed the appeal.

Legal analysis

“Although an employee’s dishonesty in abusing sick leave goes to the heart of the relationship of trust between employer and employee, employers should tread carefully where they have suspicions about the integrity of an employee’s sick note,” said Loubser.

Particularly, the legal expert said that employers should be forewarned “that suspicion alone about a particular practitioner is not sufficient to warrant disciplinary proceedings against the employee.”

“As the LAC confirmed, it is not the position of ordinary workers to interrogate whether the medical certificates they receive are issued by a duly qualified medical practitioner,” said Loubser.

Where employers have suspicions about a certain medical practitioner, Loubser says that employees can (and should) be warned about using that medical practitioner through proper notice, which can only be issued once sufficient grounds have been established to validate the employer’s suspicions about the medical practitioner’s conduct.

This would involve an investigation by regulatory bodies like the Health Professions Council of South Africa.

Read: Businesses in South Africa need to update their policies