'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.' (Extract from judgment below)
'Sick leave season' is still in full swing and many employers will be struggling with high levels of absenteeism. There’s no problem of course with genuinely ill staff staying at home to recover – no one wants them at work spreading their germs around or damaging their health! But what if you suspect malingering?
When can you demand a sick note?
According to the relevant provisions of the Basic Conditions of Employment Act:
You can require a medical certificate from any employee who’s absent from work for more than two consecutive days or more than twice in an eight-week period.
The medical certificate must state 'that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury'.
'The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.'
But what can you do if you suspect that a medical certificate has been bought or falsified? Let’s have a look at a recent Labour Appeal Court decision which provides a timely warning to employers who reject certificates without good cause.
Dismissed for dodgy sick notes
A store employee in Witbank was dismissed after being found guilty of misconduct by dishonestly producing two medical certificates in support of sick leave absences, thus breaching her employer’s policies, procedures and honesty code.
We’ll detail the employer’s reasons for suspicion in a moment but the upshot was that the dismissal was found to have been substantively unfair, a finding confirmed by both the Labour Court and the Labour Appeal Court.
But why did they reach that conclusion?
Strong suspicions but…
The certificates had been issued two years apart by a doctor of whom the employer was justifiably suspicious for a variety of reasons, including:
An email warning the store to be cautious about medical certificates issued by this particular doctor.
Apparently contradictory responses given by the employee when questioned about the notes, one of which had been issued by a nursing assistant and the other by the doctor.
Investigations into the doctor and his practice. These included a visit to his consulting rooms by two managers, who concluded that the doctor might not be a real doctor and that he might be selling fake sick notes on the basis of their observations that:
The place did not look to them like a doctor’s surgery, with broken gym equipment, ragged curtains, torn posters and only a makeshift partition wall between a reception area and a consultation room featuring an untidy table cluttered with papers, plates, cups and an old computer monitor. They saw no files or filing cabinets, only copies of medical certificates and a stamp.
None of the usual questions were asked about 'medical aid or cash patient' status and 'patients' would emerge from the consulting room in less than a minute holding medical certificates. It seemed clear to the managers that they had bought these medical certificates from the doctor’s assistants.
The doctor himself did not look to the managers like a doctor. He was not wearing a dustcoat and did not have a stethoscope. What’s more his appearance was unhygienic, with 'long nails'.
One of the managers even testified that the doctor and his assistant had been arrested for illegally operating a surgery, dispensing medicine and issuing illegal sick notes. Strong grounds, one would think, for the employer to be extremely suspicious. But in the eyes of the law, they were not enough to justify the employer’s rejection of the medical certificates.
Why did the employer lose its case?
It failed to prove its suspicions about the genuineness of the doctor or of the certificates. The doctor testified that he wasn’t just fully registered with the Health Professions Council of South Africa (HPCSA), he also had an impressive list of international qualifications and experience to his name.
Critically, said the Court, '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.'
The evidence that there may have been 'certain untoward happenings in the running of the medical practice' was irrelevant, held the Court, to the key question of whether the medical certificates were irregularly sought and issued.
As an employer, please tread carefully with dodgy-looking medical certificates – you will need more than just strong suspicion to justify rejecting them. Contact us if you aren’t sure what you need to do.
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