It is not uncommon for employers to be confronted with suspicious or fraudulent employee sick notes. Consequently, the submission of such sick notes often leads to the institution of disciplinary proceedings. Recently, the Labour Appeal Court (“LAC”) in the case of Woolworths v Maseko, considered the issue of the veracity of medical sick notes and has, as a result, provided insight into the extent of the obligations placed on employers in this regard.
The case
The case involves an employee who submitted a medical certificate issued by a doctor on 26 June 2018. The employer questioned the authenticity of the sick note due to an internal note that had been circulated within the company alleging that the doctor had previously issued suspicious medical certificates. Consequentially, the employer investigated the veracity of the employee's sick note which revealed that there were some discrepancies between the 2018 sick note and an earlier sick note issued by the doctor and submitted by the same employee. The investigators also visited the doctor's consulting rooms and, based on what they observed, concluded that the doctor may not have been qualified. They also suspected that he was selling fake medical certificates.
The employee was therefore charged with misconduct, due to a breach of company policies and procedures in submitting an irregular medical certificate to justify her absence from work, and was subsequently found guilty and dismissed.
At the CCMA, the commissioner identified the key issue as being whether the medical certificate submitted by the employee was irregular. He found that the medical certificates were valid and regular; were issued by a qualified and registered medical practitioner; and complied with the employer's policies and procedures. Accordingly, the CCMA found that the employee's dismissal was substantively unfair.
The employer's application to review the award was dismissed by the Labour Court, but leave to appeal was granted by the LAC.
The LAC summarised the employer's case to be that, due to ‘untoward' happenings at the doctor's medical practice, it had been established that the employee had submitted an irregular medical certificate issued by the doctor and that this justified disciplinary action being taken, regardless of whether the employee was aware of the irregularities related to the selling of sick notes.
The LAC rejected this argument and dismissed the appeal. The arbitrator's award stating that the dismissal had been unfair was therefore upheld. The LAC made the following comment:
“Ordinary people including workers surely cannot be expected to conduct an investigation into which doctor is qualified, which one is on suspension, and which one is for some or other reason not entitled to practise as a doctor. That is the function of the regulatory bodies… It is not unusual for a person to go to their usual doctor's room and find another doctor, usually referred to as a locum, being there and not a person's usual doctor. Many people including workers in South Africa do not have the wherewithal to determine between a qualified doctor, an unqualified doctor and one who is operating illegally. That is why there are regulatory and law enforcement bodies to whom suspicious practices by doctors should be reported”
Key takeaway
This decision makes the point that an employer cannot simply subject an employee, who submits an untrustworthy or dubious sick note, to a disciplinary hearing, merely due to the employer's suspicion about that certificate, the doctor or the person issuing the medical certificate.
The employer will have to show that the medical certificate was in fact fraudulent and that the employee knew (or possibly ought to have known) that this was the case. The LAC has highlighted that the onus of proving the fraudulent nature of a medical certificate does not rest on the employee.
Whilst this may seem onerous to some employers, it again shows the importance, as with any other misconduct, of having well-founded evidence to support misconduct allegations.
Reviewed by Peter le Roux, Executive Consultant in ENS' Employment Practice
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