Share on
DISMISSING EMPLOYEES FOR SUBMITTING IRREGULAR SICK NOTES
The challenge of dealing with irregular or ‘fake’ sick notes continues. Taking disciplinary action against employees may backfire, as happened in the case of Woolworths vs Maseko and others (2024) LAC. There was evidence of suspicious sick notes being issued at a particular doctor’s practice, including allegations that sick notes were being sold. Evidence also emerged that it was common practice among doctors to allow their experienced assistants to issue sick notes. The court nevertheless found that the employee who allegedly submitted an irregular medical certificate had been unfairly dismissed. So what went wrong?
Summary
- If an employee knowingly submits an irregular medical certificate, dismissal may be justified.
- Employees do not necessarily have the wherewithal to establish whether a person is a qualified doctor, an unqualified doctor or one who is operating illegally.
- The onus is on the employer to prove deliberate wrongdoing on the part of the employee.
- Suspicious practices by doctors should be reported to the appropriate regulatory and law enforcement bodies, such as the Health Professions Council of South Africa (the HPCSA).
- If valid grounds for irregular practices have been established (in cooperation with the HPCSA and other similar regulating bodies), the employer does not have to accept medical certificates issued by that particular doctor.
- Irregular medical certificates may result in non-payment for the days of absence and, possibly, disciplinary action against the employee.
- Employers are encouraged to implement workplace-specific rules and policies to manage absenteeism, including sick leave.
When is dismissal justified?
There are circumstances with regard to irregular medical certificates (also referred to as ‘sick notes’) where employers may discipline and dismiss employees; for example, where an employee –
- Has knowingly obtained and submitted an irregular sick note;
- Has tampered with the valid sick note (e.g. by changing the dates); or
- Has pretended to be sick and misled the doctor who issued the sick note; e.g. where rather than being sick at home, the employee attends to other matters, which demonstrates that the employee is not ill.
In the above circumstances there is clearly an element of dishonesty. The circumstances in the Woolworths matter were different, though.
Facts in the Woolworths case
On 26 June 2018, Ms Lorain Maseko, a store specialist for a Woolworths branch in Emalahleni in Mpumalanga, submitted a sick note by a Dr Frempong, booking her off for four days. There had been an email circular sent to some stores in the area that warned about suspicious medical certificates issued by Dr Frempong. Ms Maseko’s file contained a previous sicknote issued in March 2016, on Dr Frempong’s letterhead and the signature appeared to be similar. However, Ms Maseko said that the March 2016 sicknote had not been issued by Dr Frempong, but by a “Dr Zanele”.
Ms Maseko’s supervisor and another manager did further investigations, including a visit to Dr Frempong’s surgeries. It turned out that Ms Zanele was in fact a nursing assistant for Dr Frempong and that she saw patients and issued medical certificates at Dr Frempong’s other surgery about two kilometres away. The investigating managers made several observations at Dr Frempong’s practice that, according to them, confirmed their suspicion that Dr Frempong was selling medical certificates.
Ms Maseko was charged with being in breach of company policies and procedures in that she submitted an irregular medical certificate on 26 June 2018 to justify her absence from work. She was also accused of being dishonest when asked about her previous consultation with Dr Frempong in March 2016. She was found guilty and dismissed.
The CCMA
During the CCMA proceedings, the company gave evidence along the lines set out above as well as several other aspects that would be indicative of Ms Maseko’s alleged dishonesty.
Ms Maseko’s testified that “when she submitted both sick notes, she did not suspect anything amiss about them and submitted them innocently in line with the [employer’s] policies”.
During the CCMA proceedings, Dr Frempong testified that he was qualified as a medical doctor and was registered with the HPCSA. He had personally seen Ms Maseko on 26 June 2018 and had booked her off based on her condition at the time.
May a doctor’s assistant issue a medical certificate?
Dr Frempong also gave somewhat alarming evidence: He admitted that Zanele was merely an assistant who helped him out at this second practice. Although Zanele was not a doctor, he (Dr Frempong) would leave about four signed sick notes at the practice. When she saw clients in his absence Zanele would call him, whereafter she would complete and issue sick notes. According to Dr Frempong, it was common practice among doctors to allow their experienced assistants to give sick notes to patients. However, according to the HPCSA, this type of practice is impermissible.
CCMA outcome and thereafter
The CCMA found that Ms Maseko’s dismissal had been substantively unfair as there was no evidence to show that Ms Maseko was not sick in March 2016 and June 2018 during the period that she had been booked off. Ms Maseko was reinstated with back pay.
Woolworths took the matter on review to the Labour Court (LC), but the LC upheld the CCMA’s award. Woolworths was also unsuccessful in their appeal to the Labour Appeal Court (LAC).
Labour Appeal Court (LAC)
The essence of the LAC’s findings can be summarised as follows:
- The charges brought by Woolworths against Ms Maseko emanated from dissatisfaction with how Dr Frempong ran his medical practice.
- Many people, including workers in South Africa, do not have the wherewithal to establish whether a person is a qualified doctor, an unqualified doctor or one who is operating illegally.
- Dr Frempong’s qualifications as a medical doctor were not seriously challenged. He testified that he saw Ms Maseko on 26 June 2018 and booked her off for four days.
- The company did not prove wrongdoing on the part of Ms Maseko.
- Other than submitting sick notes to the employer in terms of company policy, nothing else was required of Ms Maseko.
- Suspicious practices by doctors should be reported to the appropriate regulatory and law enforcement bodies, such as the Health Profession Council of South Africa (the HPCSA).
- The question as to whether a doctor’s assistant may issue medical certificates is also a matter between that doctor and the regulatory body.
- Much of the company’s evidence about what was happening at Dr Frempong’s practice, such as that sick notes were “sold”, amounted to hearsay evidence or were irrelevant.
- The LAC dismissed Woolworths’ appeal, which means that Ms Maseko had to be reinstated with back pay.
Lessons and recommendations
Although the issuing of irregular sick notes is an enormous challenge for employers, they need to have proper evidence of wilful wrongdoing on the part of the employee before taking disciplinary action.
Measures to curb the problem of irregular sick notes may include the following:
- Educate employees about what is required for a medical certificate to be valid (with reference to the applicable ethical and professional rules) – see previous article at https://www.labourwise.co.za/labour-articles/doctors-ondemand-certificates.
- Encourage employees to report suspicious practices.
- Investigate suspicious practices thoroughly and obtain concrete evidence of any irregularities.
- Report suspicious practices to the HPCSA and other similar regulating bodies.
- If valid grounds for irregular practices have been established (in cooperation with the HPCSA and other similar regulating bodies), employees should be warned against using that particular doctor through clear communication channels.
- Depending on the circumstances, an employer may not have to accept further medical certificates by that doctor, resulting in non-payment for the days of absence and, possibly, disciplinary action against the employee.
- Conduct a return-to-work interview immediately upon an employee’s return to work.
- Implement workplace-specific rules and policies to manage absenteeism, including sick leave.
Jan Truter for www.labourwise.co.za