Dismissing Employees for False Medical Certificates

The case of Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29; [2024] 8 BLLR 881 (LAC); (2024) 45 ILJ 2270 (LAC) (13 June 2024) – Woolworths v Maseko – illustrates a critical lesson for employers when it comes to handling irregular or potentially fraudulent sick notes. The case underscores the importance of having a clear, well-supported process for investigating and addressing suspicions of misconduct, particularly when dealing with an issue as nuanced as medical certificates. Here’s a deeper look into why dismissal was unjustified in this case, and the lessons for employers:

1.  Lack of Evidence of Employee Wrongdoing

 The core issue in this case was the absence of direct evidence linking Ms. Maseko to any intentional wrongdoing. Woolworths based its disciplinary action on the assumption that she had knowingly submitted an irregular sick note, but the company could not prove that Maseko was aware of any issues with the note or the doctor’s practice.

• The key issue: The company’s case rested on the alleged irregularities in Dr Frempong’s practice, including the sale of medical certificates. While these suspicions raised red flags about the doctor’s conduct, there was no evidence to show that Ms. Maseko acted dishonestly when submitting the sick note.

• The court’s finding: The Labour Appeal Court (LAC) found that nothing in Maseko’s behaviour indicated that she was complicit in any fraudulent activity. She had simply followed company procedures by submitting a doctor’s note. The court emphasised that, as an employee, Maseko was entitled to rely on a valid medical certificate from a registered doctor.

2.  Focus on the Doctor’s Conduct, Not the Employee’s

 A significant part of the case involved the investigation into Dr Frempong’s practice. While the practice may have been problematic (e.g., allowing unqualified assistants to issue sick notes), this was not directly the employee’s responsibility. Maseko had submitted the note in good faith, based on a consultation with Dr Frempong.

• The key issue: The company’s investigation largely focused on the doctor’s irregular practices, such as selling medical certificates and allowing his assistant to issue sick notes. However, this focus shifted attention away from whether Maseko had knowingly submitted a fraudulent note, and instead pointed to broader issues with the medical practice itself.

• The court’s finding: The LAC made it clear that suspicious practices by a doctor should be reported to the Health Professions Council of South Africa (HPCSA) and handled through the appropriate regulatory channels, not by punishing employees who submit sick notes issued by that doctor in good faith.

3.  Misunderstanding of Employee Responsibility

 There was an implicit assumption by Woolworths that Maseko should have known that there was something wrong with the sick note because of the issues at Dr Frempong’s practice. However, this expectation was misplaced. Employees are not expected to question the validity of medical certificates issued by qualified medical professionals, unless there is some reason to believe they are not genuine.

• The key issue: Employers cannot expect employees to question the legitimacy of sick notes unless there are obvious signs of fraud or irregularities. In this case, Maseko’s testimony that she submitted the sick note innocently and in line with company policy was credible. There was no reason for her to suspect anything amiss, especially since the sick note came from a qualified doctor.

• The court’s finding: The courts held that the employee was acting within the scope of company policies, and there was no direct evidence to suggest that Maseko was involved in any fraudulent activity. As such, dismissal was substantively unfair.

4.  The Importance of Proper Investigation

 Woolworths’ investigation into Maseko’s conduct was criticized for not focusing enough on the employee’s actual actions. Instead, it relied heavily on hearsay and suspicions about Dr Frempong’s practice.

• The key issue: The company’s evidence that sick notes were being sold or that Zanele, Dr Frempong’s assistant, was issuing them improperly, was based largely on circumstantial evidence and hearsay, not direct evidence of Maseko’s involvement in the wrongdoing.

• The court’s finding: The court emphasised the need for clear and direct evidence before taking disciplinary action. In this case, the evidence did not support the claim that Maseko knew or should have known about the doctor’s alleged malpractice.

5.  The Role of Regulatory Bodies

 The case also highlights the role of regulatory bodies like the HPCSA in dealing with irregular practices by healthcare providers. If an employer suspects that a doctor is involved in unethical or illegal conduct, the appropriate course of action is to report the matter to the regulatory body for investigation, not to take matters into their own hands by punishing employees.

• The key issue: Woolworths’ approach was to penalise the employee, rather than dealing with the issue by reporting the doctor’s practices to the relevant authorities. The LAC noted that this approach was inappropriate.

• The court’s finding: The court suggested that Woolworths should have reported the suspicious practices to the HPCSA rather than disciplining Maseko. The court also highlighted that whether or not a doctor’s assistant can issue medical certificates is a matter to be resolved by the HPCSA, not the employer.

Lessons for Employers

1.  Ensure proper evidence of employee wrongdoing: Before taking disciplinary action, ensure that there is solid   evidenceof the employee’s involvement in any wrongdoing. Suspicion alone is not enough, especially if the employee          followed company policy and acted in good faith.
2. Differentiate between employee responsibility and doctor’s conduct: Employees are generally not responsible for verifying the legitimacy of sick notesissued by a qualified doctor. Issues with the doctor’s practice should be addressed with the appropriate regulatory bodies, such as the HPCSA, not by punishing employees.
3. Investigate thoroughly and focus on relevant evidence: Investigations should be focused on the employee’s actions, and any circumstantial evidence or hearsay should be treated cautiously. Irregular practices at a doctor’s officeshould be handled through formal channels, not by targeting employees.
4. Report suspicious medical practices: If an employer suspects that a doctor’s practice is irregular or unethical (e.g., issuing fake sick notes), they should report the issue to the relevant authoritiessuch as the HPCSA, rather than taking immediate disciplinary action against the employee.
5. Clarify company policies: Employers should educate employeesabout the proper procedures for submitting sick notes, ensuring that employees understand the requirements for valid medical certificates. This reduces the risk of misunderstandings and ensures compliance with company policies.

Conclusion

The Woolworths v Maseko case serves as a reminder that disciplinary action, especially in cases involving irregular sick notes, should be carefully considered and based on solid evidence. Employers should not rush to dismiss employees based on suspicion or hearsay about a doctor’s practices. Instead, they should focus on the employee’s actions, investigate thoroughly, and use the proper regulatory channels to address any issues with healthcare providers. This ensures fair treatment of employees and minimizes the risk of costly legal repercussions.