Corporate Accountability and Human Rights: Aligning South African Business Practices with Constitutional Values
November 15, 2024
Labour Law
Employers may not expect their employees to scrutinise the legality of the medical doctors before consulting with them.
The idea that an employee who happens to go to a doctor who is not trusted by an employer must be subjected to a disciplinary process for consulting with that doctor is troubling. At the very least, the employer should investigate their suspicions about the contraventions of standard operating procedures by that doctor and if the suspicions are well founded, the employees should be warned about using that particular doctor once some valid grounds have been established, and investigation by necessary regulatory bodies has been conducted.
Facts of the case
In the Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitrations (JA90/22)[2024]ZALAC 29 (13 June 2024), the central issue in this case revolved around the irregularity of the validity of a medical certificate submitted by Ms Maseko to her erstwhile employer, Woolworths, which ultimately led to her dismissal. Mrs Maseko submitted a medical certificate issued by Dr Frempong on 26 June 2018. The employer had previously received a warning from its local branch about the suspicious medical certificates issued by Dr Frempong. When the employee was asked about the doctor and her previous sick note that she submitted in 2016, there were some discrepancies as the employee had said those sick notes were not from the doctor in question. That led to the suspicion that those sick notes might be irregular as from the face of it, the two sick notes were from the same doctor. The employer began with an investigation which included visiting the doctor’s consulting rooms where they observed something untoward which made them to conclude that Dr Frempong might not be a real doctor, as he was not wearing a dustcoat and didn’t have stethoscope, unhygienic appearance and long nails and untidy table in terms of standard operating procedures. They also observed that he was involved in illicit dealing in medical certificates.
Despite the doctor’s confirmation that Ms Maseko was at his consulting room on the 26 June 2018, she was subsequently charged for “misconduct in that she breached the company policy and procedure by submitting an irregular medical certificate on 26 June 2018 to justify her absence from work. She was found guilty and dismissed pursuant to the disciplinary hearing.
The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), the issue to be determined was whether or not the medical certificate that was submitted by Ms Maseko was irregular.” The Commissioner found that there was no evidence presented that Ms Maseko was not sick on both occasions in which she submitted medical certificates and accordingly concluded that the medical certificates were valid and regular having been issued by a qualified and registered medical practitioner, a principle which is in compliance with the employer’s policies and procedures. The Commissioner found in the employee’s favour and reinstated her.
Unhappy with the decision of the Commissioner, the appellant approached the Labour Court for review and to set aside the decision. Ms Maseko brought in the doctor who diagnosed her and confirmed that she was sick on the 28 June and that he is a qualified doctor and didn’t issue a sick note to someone who is not sick. The Labour Court found that the evidence brought by the appellant in respect of selling the ‘sick notes’ was not corroborated, and in the main hearsay. The Court concluded that the decision reached by the Commissioner was not one that a reasonable decision maker could not have reached based on the evidence presented before him.
The matter was referred to the Labour Appeal Court (LAC ), which concluded that the commissioner was correct that there was no evidence that the employee was not sick on the days she presented the medical certificates, and the medical certificate was not irregular as it had not been tampered with, or that the employee knowingly went to obtain the irregular medical certificate to validate her absence from work. On the contrary, the evidence provided by Ms Maseko was such that she was sick when she went to the doctor, and there was documentary evidence that Dr Frempong is a qualified doctor, registered at HPCSA, South African Medical and Dental Council and had extensive experience.
The LAC found that it would not be fair to dismiss an employee who unknowingly goes to a normal medical practitioner who happens to be somehow untrustworthy and doing illegal activities, unless if an investigation was done by the regulatory body and the employee was made aware not to visit that specific doctor. Further that, ordinary people like the employee, cannot be expected to conduct an investigation about which doctor is qualified, which one is on suspension, and which one is allowed to practice or not, such exercise should be left to the regulatory bodies. The LAC concluded that the court a quo (Labour Court) correctly found that the appellant (the employer) failed to discharge the onus in establishing either that the commissioner committed any misconduct in relation to his duties as a commissioner, that the commissioner committed gross irregularity during the arbitration proceedings or exceeded his powers and that there was no need to interfere with the decision of the Commissioner. The LAC dismissed the appeal.
Conclusion
This case serves as a reminder that while suspicions of misconduct in medical practices may arise, the employer is required to prove that the medical certificate issued is fraudulently obtained. The employer may scrutinize the medical certificates to check if same has been tampered with or falsified.
The key lesson from this case is that employees accused of misconduct of providing an irregular sick note, should not be dismissed unless there is evidence of impropriety on the part of the doctor, such impropriety has been communicated by the employer to its employees and there have been investigation findings by the regulatory authority to that effect.
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