INTRODUCTION AND OVERVIEW
The submission of a fraudulent medical certificate to justify an employee’s absence from work is amongst one of the most common types of misconduct for which an employee may be summarily dismissed. This type of misconduct falls within the ambit of dishonest conduct, thus, in order to find an employee guilty of dishonesty it must be established that the employee committed the offence with the intent to mislead the employer.
A recent judgment by the Labour Appeal Court (LAC) in the matter of Woolworths v Maseko & Others has highlighted the burden of proof for employers to provide evidence of employees falsifying sick notes to justify their dismissal.
In this matter, Maseko, the employee, handed a medical certificate to her employer in June 2018, the certificate was issued by one, Dr Frempong. Several Woolworths stores, including the one in which Maseko worked, had received an email warning them about suspicious medical certificates issued by Dr Frempong.
Maseko’s medical certificate prompted Woolworths to review her employee file and it was discovered that another medical certificate from the same doctor had been issued in March 2016. Woolworths confronted Maseko about the medical certificates, and Maseko advised Woolworths that the medical certificates were not from the same doctor, the medical certificate issued in 2018 was from Dr Frempong, but the one in 2016 was from another doctor, a Dr Zanele.
However, Woolworths suspected the certificates were irregular as on the face of it, it was issued by the same doctor. Woolworths launched an investigation which sent two other employees to Dr Frempong’s office, where they observed patients entering and exiting Dr Frempong’s practice in less than a minute, with medical certificates. The two investigating employees concluded that the patients were thus “buying” fake medical certificates. This inference was supported by observations made by the two investigating employees that Dr Frempong’s consultation room and surgery was untidy and cluttered, and Dr Frempong was observed to have had long fingernails.
The investigation also uncovered that “Dr Zanele” was not a doctor, but an assistant to Dr Frempong, who had two surgeries, operating in different areas. Woolworths concluded that because of what it called “untoward” happenings at Dr Frempong’s medical practice in respect of the alleged, but unproven, issuing and buying of sick notes, Maseko was not sick on that day. Based on what was observed, they furthermore concluded that Dr Frempong might not be a real doctor.
This led to Maseko being charged with the misconduct of being in breach of company policies and procedures in submitting an irregular medical certificate on the 26th of June 20218 to justify her absence from work. Maseko was found guilty and summarily dismissed.
Maseko challenged her dismissal at the CCMA and the CCMA commissioner found that there was no evidence based on which it could be concluded that when Maseko visited the doctor’s surgeries in March 2016 and in June 2018, that she was not sick when she consulted and was issued with medical certificates. There was also documentary evidence of Dr Frempong’s qualifications and extensive experience as a doctor, and he was in fact registered with the SA Medical and Dental Council.
It was ruled by the commissioner that the evidence that Dr Frempong was selling medical certificates, was simply hearsay evidence. The commissioner accordingly found that Maseko’s dismissal was substantively unfair and ordered the reinstatement of Maseko. Woolworths subsequently challenged the reasonableness of the commissioner’s decision in the Labour Court, and the Labour Court concluded that the commissioner applied his mind to the evidence and the material before him, thus commissioner’s award was upheld.
Disenchanted with the decision of the Labour Court, Woolworths appealed against the Labour Court’s judgment.
FINDINGS OF THE LABOUR APPEAL COURT
The LAC found that the evidence of the two investigators that suspicious things were happening in the running of the doctor’s medical practice, even if it was true, is irrelevant to the key question of whether Maseko’s medical certificate dated 26 June 2018 was irregularly sought and issued. The LAC held that the evidence provided by Woolworths did not meet the legal standards as it failed to show the employee knew the doctor was fraudulent, judge Jolwana remarked that “surely it cannot be that a doctor who is otherwise qualified as a doctor, who dabbles into some illegal activity or other illegal activity of selling medical certificates is somehow assumed to be disqualified from examining people and booking them off sick, untainted by the issues of illegally selling medical [certificates],”.
Judge Jolwana remarked further that “It is even concerning that an employee who may unknowingly go to what appears to be a doctor’s normal practice and is booked off sick could be dismissed if it turns out that the doctor was neither qualified nor unregistered. Ordinary people including workers cannot be expected [to know in which field] a doctor is qualified, which [doctor] is on suspension, and which one is, for some reason, not entitled to practise,”.
The court concluded Dr Frempong still had his licence and the fact that he may have had illegal dealings or even been selling sick notes was not connected to this matter, and further it was not proven that Maseko was not truly sick on the days when she was absent.
CONCLUSION AND KEY TAKEAWAYS
In summary, the LAC found that the public has no duty to ascertain whether a doctor is qualified or not. As such, the right of a doctor to practice is an administrative issue and the HPCSA should be the body dealing with this issue.” In the matter of Mbanjwa v Shoprite Checkers (Pty) Ltd and Others[i] the court held that “the test at all times remains one of balance of probabilities. Reasonable or strong suspicion is not adequate to terminate the employment relationship.”
The effect of this judgment reaffirms the principle that it is not enough to prove that the medical certificate was issued by a non-registered “medical practitioner” but what must be proven on a balance of probabilities is that the employee was aware that the medical practitioner was not registered, and the medical certificate was fraudulent. The ruling compelled Woolworths to reinstate Maseko.
Only after a thorough investigation has been conducted and one can on a balance of probabilities infer that employee was aware that the medical practitioner was not registered, and the medical certificate was fraudulent, can disciplinary action be taken, failure to do so may result in an unfavourable award at the CCMA, Bargaining Council or competent court.
[i] (DA4/11) [2013] ZALAC 129
by Ross Simon
© Maserumule Corporate Employment Law – July 2024
