Increasingly, employees are submitting suspicious medical certificates, and a recent Labour Appeal Court judgment is not reassuring. The case in point is Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29 (13 June 2024).
Case Summary:
- Incident: On 26 June 2018, an employee submitted a medical certificate from Dr. Frempong. A review of the employee’s file revealed another certificate from the same doctor in March 2016.
- Employee’s Defense: The employee claimed the certificates were from different doctors, a female in 2016 and a male in 2018.
- Investigation: It was confirmed that Dr. Frempong sold medical certificates. The employee saw the doctor in June 2018 and a nursing assistant in March 2016.
Outcome:
The employee was charged with misconduct for submitting an irregular medical certificate on 26 June 2018 and was dismissed. However, during arbitration, it was found that:
- The key issue was whether the medical certificate submitted on 26 June 2018 was irregular.
- No evidence showed that the employee was not sick on the dates in question.
- The certificates were deemed valid and regular, issued by a qualified and registered medical practitioner.
The Labour Court and CCMA agreed with this conclusion, finding the dismissal substantively unfair.
Employer’s Appeal:
The employer argued that testimonies and evidence suggested irregularities at Dr. Frempong’s practice. However, the Labour Appeal Court (LAC) did not find sufficient proof that the employee knew of any misconduct by the doctor.
LAC Judgment:
The LAC ruled that:
- There was no evidence that the employee knowingly obtained an irregular medical certificate.
- There was no tampering with the medical certificate.
- The employee did not mislead or convince the doctor that she was sick when she was not.
The judgment highlighted that employees cannot be expected to verify the qualifications of doctors. Regulatory bodies are responsible for such oversight.
Implications:
The LAC judgment limits the grounds for charging an employee with submitting a fraudulent medical certificate. Employers must prove that the employee knew the certificate was fraudulent. This sets a higher bar for employers to discipline employees for using certificates from disreputable doctors.
