By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected]

Even without the effects of Covid absenteeism is a most problematic form of misconduct because it reduces productivity. Most employers therefore require employees who are absent from work due to alleged illness to provide proof, in the form of a medical certificate and/or a positive Covid test result, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness.

Covid complicates the process of dealing with allegedly sick employees because it is such a virulent disease. Therefore, when an employee presents with Covid-like symptoms, employers often send them home and require a Covid test to be done. But, even where the test result is negative, the employer might not allow the employee to return to work due to the possibility of a false negative result. This might require a second test to be done.

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 that the employee was ill. 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 discipline the employee. However, one or two CCMA commissioners have found that withholding remuneration and also disciplining the employee constitutes double punishment. I strongly disagree with this view because the reason for withholding pay 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 no traditional healers have been registered as yet. It thus appears that employers are not yet obliged to accept medical certificates from traditional healers. However, employers need to proceed with great care in such cases.

An even more vexed issue is that many medical certificates often do not constitute sufficient proof of illness. 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.

That is, it can and does happen that people set up consulting rooms and advertise themselves as doctors despite the fact that 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 knowing 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 view our experts’ debate opinions on thorny labour law issues please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the menu.

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