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Proof of Illness a Vexed Issue

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BY   Ivan
Israelstam, Chief Executive of Labour Law Management Consulting. He may be
contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to:
www.labourlawadvice.co.za.

Ivan Israelstam

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 or injury to provide proof, in the form of a medical certificate, that they were genuinely ill and not abusing sick leave for purposes unrelated to illness.

It is established practice that
employers are entitled to require such proof from employees and to discipline
absentees who are unable to provide it. 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 or injured. 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 issue the employee with a warning for the absenteeism or to impose
more severe discipline (depending on the severity of the case). However, one or
two CCMA commissioners have found that withholding remuneration and also disciplining
the employee constitutes double punishment. I strongly disagree with this confused
view because the purpose of the withholding of payment 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 the council with which traditional
healers could register has not yet been fully set up. It thus appears that
employers are not yet automatically obliged to accept medical certificates from
traditional healers.

An even more vexed issue is that
relating to the genuineness of medical certificates issued. That is, a great
many medical certificates submitted to employers appear to have been validly issued
by properly registered medical practitioners. However, such certificates are
often not what they seem and/or are not acceptable. 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 even 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 roll 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 observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at www.labourlawadvice.co.za.

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