Fraudulent sick notes warrant dismissal
BELIEVE it or not, a sizeable number of medical certificates, colloquially known as sick notes, presented to employers daily, are fraudulent.
Many employers will relate to the scourge of Monday and Friday “sick leave-itis”, which is a major contributor to sick leave typically being more than 15% daily. This is a significant labour cost for employers.
It has been estimated by Occupational Care South Africa that about 40% of all employees who claim sick leave are not physically ill, and that South African businesses are losing as much as 17% of their payroll every year due to absenteeism. This is a strain on already cash-flow strapped employers.
In the Labour Court case of BP Southern Africa v The National Council for the Chemical Industry & others (Case number JR2000.12), the employee had been dismissed for unauthorised absence from work and submission of fraudulent medical certificates to the company.
After a period of absence from work, the employee reported for duty and presented three copies of medical certificates issued by three different practitioners.
The first medical certificate, covering the first few days of the employee’s absence from work, declared the employee unfit to perform his duties due to cystitis.
The second the period of absence was supported by a medical certificate from another medical practitioner, who booked the employee off work for migraines and depression.
The third leg of the period of absence was supported by a medical certificate from a third medical practitioner, who had booked the employee off sick for bronchitis.
The the three medical certificates from three different medical practitioners covering the period of absence were then assessed. The judgment noted that “an occupational health consultant for the company also testified that he had assessed the copies of medical certificates submitted by (the employee), and had thereafter contacted the practitioners that had issued them.
“Dr Matjekane’s rooms had no evidence of (the employee’s) attendance at all, while Dr Bikitsha became abusive when contacted.
“Dr Adam, on the other hand, indicated that (the employee) had problems with alcohol abuse.
“Dr Manjra had concluded that the employee had an alcohol problem and that HR should intervene. The employee was referred to a psychiatrist who after consultations on February 7, 2012, concluded that he was not mentally ill and was fit to resume work.”
At the Commission for Conciliation, Mediation and Arbitration (CCMA) hearing, the commissioner held that: “It was clear that the three medical certificates submitted by (the employee) did not reflect his true medical condition and the real reason for his absence between January 9 and 20, 2012, and accordingly his absence was unauthorised,” The commissioner also held that the employee “presented false medical certificates to BP knowing that they were false and, therefore, did so with fraudulent intent, causing potential prejudice to BP”.
It was, however, apparent that the employee had an alcohol dependency problem.
The CCMA arbitration award held that notwithstanding the identified fraudulent medical certificates, “the sanction of dismissal was unfair as it gave BP an opportunity to get rid of (the employee) instead of following the more cumbersome route of rehabilitation”.
The employer sought to review this finding at the Labour Court.
The Labour Court held that: “There is no hesitation in concluding that the commissioner went on a frolic of his own, and completely misconstrued the nature of the inquiry before him based on the reason for the dismissal and evidence led in that regard. On his own, he had raised the issue whether the core of the dispute was not a matter of incapacity due to alcohol abuse and whether (the employee) should not undergo rehabilitation treatment for alcohol abuse.
“This was indeed irregular, in that it was never BP’s case nor that of (the employee) that the dismissal was related to alcohol abuse and incapacity, and that BP used the two charges that led to a dismissal as a smokescreen.
“Any such conclusions could only have been reached if pleaded by (the employee), and also if ultimately proven on the facts. There was no evidence led by (the employee) that his alcohol problems had led to his alleged incapacity or the reason for his absence, until probed and prompted by the commissioner.
“Only after being prompted by the commissioner did (the employee) indicate that he was a heavy drinker, which revelation was not only opportunistic, but also evidence (that) BP had not been aware of, or which it was afforded an opportunity to rebut.
“There was evidence that (the employee) had been counselled before (with) regard to his absenteeism and bad attendance record.
“The copies of fraudulent medical certificates submitted by (the employee), even if they were to be accepted, had not indicated that he had alcohol problems or was incapacitated, and the commissioner had accepted that they were fraudulent.
“The (employee) was not decisive as to whether he sought assistance or not in relation to his alleged alcohol abuse problems. On his version, he had not signed the consent forms to volunteer for rehabilitation, and even if it had dawned on him that he should have volunteered for rehabilitation, BP had already decided to take steps against him on the basis of his dishonest conduct..
“The commissioner ultimately during the course of the proceedings had realised that the details surrounding alcohol abuse and alleged incapacity were not placed before him, and he had, nevertheless, continued to make his ultimate findings on those issues.
“Despite having concluded that copies of the medical certificates were fraudulent, and thus (the employee) was on unauthorised absence, the commissioner nevertheless continued to conclude, and without any basis, that his absence was due to being incapacitated to do his work due to alcohol abuse,” read the judgement.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. For column back copies, visit
www.tonyhealy.co.za
