The matter of a medical certificate has raised questions for quite some time. Many employers believe that if their employees provide a medical certificate for their absence from work they are obliged to pay them for the day(s) missed. Similarly, employees believe that should they stay away from work and provide a medical certificate, all should be forgiven. While this is partly true, our Labour Courts have emphasised that employers are under no obligation to merely accept an employee’s medical certificate at face value. What then, as an employee, are your next steps, and on what basis, as an employer, are you entitled to do this?
The abuse of sick leave has become widespread within the South African workplace. Employees tend to conveniently fall ill at the drop of a hat and easily obtain confirmatory medical certificates, while others pay doctors for a medical certificate exaggerating their symptoms. Employers lose millions, if not billions, of money as a result of sick leave abuse, while employees believe that merely providing a medical certificate is irrefutable proof of their incapacity. Is this belief well-founded?
According to Section 23 of the Basic Conditions of Employment Act (referred to as “the BCEA”), an employer is not obligated to pay an employee under Section 22 (the sick leave provision) if the employee is absent from work for more than two consecutive days and fails to provide a medical certificate upon the employer’s request, confirming their inability to work. At first glance, it may seem that the law leans in favour of the employee by simply presenting a medical certificate, making it a final matter.
However, it is important to discuss what qualifies as a “valid” medical certificate. Section 23(2) of the BCEA provides guidance concerning this. A valid medical certificate must be issued and signed by a medical practitioner or a certified person authorised to diagnose and treat patients, registered with a professional council established by an Act of Parliament. For a medical certificate to be considered valid, it must fulfil two requirements: firstly, it must state that the employee was unable to carry out their duties due to illness or injury, and secondly, it must be based on the professional opinion of the medical practitioner. Certificates that simply state “I was informed by the patient” are not considered valid since the practitioner did not provide a diagnosis or their professional opinion. Such certificates are mere formalities. This is just one avenue through which an employer can question the validity of a medical certificate.
Another point is when an employer reasonably suspects that his employees are absent from work without any authorisation and uses sick leave and a medical certificate as a tool to still get paid and avoid any consequences. This was the case in NUMSA and Others v Kaefer Energy Projects(1). In this case, 43-44 employees were absent from work to take part in an unprotected strike. Upon returning, they submitted medical certificates to excuse their absence. However, Kaefer, the employer, charged and dismissed them for unauthorised absence and sabotage. Upon challenging the decision of the employer, NUMSA argued that they were under no obligation to prove the truth and accuracy of the contents of the certificate and that a mere production constituted a valid reason for being absent from work. The court, however, has established that a medical certificate is considered hearsay evidence and would require additional support in the form of an affidavit from the medical practitioner, affirming the information stated in the certificate. Should this not be done, our courts have held:
“The absence of any such explanation is viewed in a most serious light. The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread – as I believe they are-it strengthens the need for courts [and employers] to be especially vigilant against their misuse.”(2)
Therefore, the employer is under no obligation to accept the submission of a medical certificate. However, should he or she challenge the validity thereof, it must be done based on reasonable suspicion of abuse, as in the case of Keafer. In such situations, the employee should not be abusing their sick leave, and if questioned, get their doctor to submit an affidavit confirming the contents therein.
It is essential to keep in mind that when an employee takes one or two days off due to illness, a medical certificate is not necessary. However, those days still count as sick leave and will be deducted from their overall sick leave entitlements.
References:
- (2022) 43 ILJ 181 (LC) (7 September 2021).
- Mgobhozi v Naidoo NO & Others (2006) 27 ILJ 786 (LAC) at para [27].
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)