Refusing a Medical Certificate and Withholding Pay

Jan 8, 2024

What can an employer do when an employee submits a medical certificate from a clinic sister?

 

Section 22(5) of the Basic Conditions of Employment Act (BCEA) provides for sick leave and, more specifically, paid sick leave. However, what happens when an employer requests proof of incapacity (sick note/medical certificate)?

Section 23(1) of the BCEA provides that an employer is not obliged to pay an employee if an employee has been absent/sick from work for more than two (2) consecutive days or more than two (2) occasions during eight weeks, and on request by the employer, the employee fails to produce a sick note/medical certificate recording that the said employee was unable to perform work for the duration of the employee’s absence on account of sickness or injury.

Section 23(2) of the BCEA records that the sick note/medical certificate must be issued and signed by a medical practitioner, or any other person certified to diagnose and treat patients and registered with a professional council established by an Act of Parliament.

A registered professional council established by an Act of Parliament refers to the Health Professions Council of South Africa (HPSCA). It is a requirement for all healthcare practitioners in South Africa to register with the HPSCA to practice in South Africa lawfully.

In this regard, a clinic sister, nurse and the like cannot issue and sign a sick note/medical certificate as such persons are not qualified to examine and diagnose patients. The employer can therefore reject such a sick note/medical certificate, and the employer can treat the period of the employee’s absence as unpaid leave, in the circumstances of Section 23(1) of the BCEA.

If a  traditional health practitioner is registered in accordance with the Traditional Health Practitioners’ Council, he or she is certified to diagnose and treat as per section 23 of the BCEA, and any medical certificate issued by him or her, will be valid, unless such certificate does not comply with the technical guidelines published by the Council.

An employer must accept a valid sick note/medical certificate issued and signed by a registered healthcare practitioner. If they withhold the employee’s pay due to the employee being unable to attend work, on account of the employee’s illness/injury and in line with a valid sick note/medical certificate, this would be an unfair labour practice. The employee can take the necessary action against the employer.

Moreover, suppose the employer can prove that the said employee is, in fact, not sick. In that case, even though the employee has a valid sick note/medical certificate, the employer can proceed with disciplinary actions against the employee.

It is vital to ensure that when an employee obtains a sick note/medical certificate, it must be issued and signed off by a healthcare practitioner who is registered with a professional council, failing which the employer has the right to reject the sick note/medical certificate.

Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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