Dealing with suspect ill health absenteeism & fraudulent medical certificates

Sep 21, 2009


Labour legislation may come and go, but the problems of phony or fraudulent
medical certificates and suspect ill health absenteeism seem to stay with us forever.
In this article we focus on the circumstances under which you may fairly refuse to
pay for sick leave, when you may take action against employees for fraud, and what
you can do about unacceptable ill health absenteeism.

A “valid” medical certificate
There is no statutory definition of a valid medical certificate, i.e., one on which you
must pay the employee for ill health absence. However, the Basic Conditions of
Employment Act (BCEA), does state that a medical certificate must be: issued and
signed by a medical practitioner, or any other person who is certified to diagnose and
treat patients and who is registered with a professional council established by an Act
of Parliament. (Medical Practitioner is defined in the BCEA as “a person entitled to
practice as a medical practitioner in terms of Section 17 of the Medical, Dental and
Supplementary Health Service Professions Act”.)

At this time there are no “professional councils established by an Act of Parliament”,
other than the Medical and Dental Council, and it is thus safe to assume that the only
persons authorised to issue valid medical certificates are medical practitioners as
defined above.
Note: If you have agreed to accept medical certificates which are issued and signed
by persons who are not medical practitioners, (for example from traditional healers),
then these certificates are of course valid.

In addition to being issued and signed by a medical practitioner, the BCEA
importantly requires that the certificate should specify that the employee was too ill,
or injured, to work for the entire period of his or her absence. It is also generally
accepted that a valid medical certificate should also: (1) show the date on which it
was issued, (2) show the date on which the employee was examined, (3) describe in
general terms only the broad nature of the illness or affliction, and (4) contain the
issuer’s name, qualifications, address and a ‘contactable’ telephone number.

If a certificate does not meet the above criteria, then you would, in our opinion, be
entitled to refuse to pay the employee for any ill health absenteeism until such time
as he or she presented you with a ‘proper’ medical certificate. Note: If an employee is absent for health reasons for not more than two consecutive days in an eight-week period, or on not more than two occasions during an eight-week period, then he or she is not required to produce a medical certificate in order to be paid for such absences (The ‘eight-week rule’). The employee must of course still be too ill, or injured, to work and if you can prove that this was not the case, you
could refuse payment and discipline the employee for abuse of sick leave.

“Valid but suspicious” certificates
It is an unfortunate fact that medical certificates may be purchased in many places,
as it is easy for the sellers to steal or print them.

If you are suspicious of a certificate, the first step is to contact the issuing medical
practitioner, and confirm that he or she actually did examine the employee and issue
the certificate. If you are unable to contact the practitioner because the address or
phone number on the certificate does not exist, then you may be able to charge the
employee with fraud, if the certificate is related to paid sick leave. (If the certificate
does not relate to paid sick leave but to general absenteeism, then you may
discipline the employee on a charge of dishonesty in presenting a counterfeit
medical certificate in order to justify his or her absence.)

If the medical practitioner can be contacted, but states that he or she did not
examine the employee and based the diagnosis on what the employee said, then
you may request that a new certificate be issued based on a proper medical
examination. If the medical practitioner denies all knowledge of the certificate, or
states that it has been altered, then you may discipline the employee for fraud.

Suspicious medical practitioners
There are medical practitioners who are willing to issue medical certificates when the
alleged illness or malady is highly suspect. There are also practitioners who are
prepared to issue medical certificates when there is absolutely no reason
whatsoever to do so. The question which arises, is what can be done when you
suspect this type of behaviour? The answer is: very little.

A medical practitioner is under no obligation at all to provide you with any information
as to the exact, or even general, nature of the employee’s illness.

In fact, it could be a serious ethical breach of patient – doctor confidentiality to tell
you anything without the employee’s express permission. In reply to any query you
may have as to whether or not the employee is or was actually ill, or whether the
medical practitioner actually examined him or her, the doctor is quite entitled to tell
you to mind your own business, and that the medical certificate stands as written.

If you are dissatisfied with the response you get, you may refer the matter to the
Medical & Dental Council, or its equivalent, and lay a complaint that the doctor is
issuing medical certificates without proper medical grounds on which to do so.
However, unless you can show a pattern of ‘strange’ certificates, or an example of a
medical certificate which is clearly contrary to the known facts of the matter, you are
unlikely to get much satisfaction from this route. The medical profession is highly organised and is generally disinclined to take action against its members, unless the
reason for such action is overwhelming. (This is not to suggest that you should never
consider approaching the Council, only that you will need to have considerable
patience, determination and concrete evidence).

Dealing with suspect ill health absenteeism

Absenteeism due to ill health is merely one form of absenteeism, and should be
treated as such. Management should be more concerned with the fact that the
employee is absent, then with the fact that the reasons for the absence may be
suspicious. In other words, as there is little point in attempting to deal with the
problem of dubious medical certificates via the medical profession, it is usually more
constructive to handle the matter as absenteeism which can be dealt with through
your internal procedures. This approach is particularly useful in those situations
where the employee keeps making use of the ‘eight-week rule’ to avoid having to
present a medical certificate at all.

For example, the employee has a record of absenteeism due to ill health, each
incident being supported by valid medical certificates. You sense that he or she is
taking advantage of the sick leave provisions but cannot prove it. Alternatively, the
employee takes exactly two days off every eight weeks and thus doesn’t have to
present a certificate to be paid for this sick leave. In each case the approach is the
same – to treat the problem for what it is, i.e., absenteeism due to ill health.

The employee who is regularly off sick and presents medical certificates each time
should, thus, be counselled about the problems which his or her absenteeism are
causing you. If the level or pattern of absenteeism continues, the employee should
be counselled again, and informed that unless there is improvement; he or she may
become unsuitable for continued employment. If there is no improvement, you may
eventually dismiss the employee on the grounds of incapacity, i.e., unsuitability for
continued employment due to absenteeism resulting from ill health.

Exactly the same approach may be used for those employees who take off a few
‘sickies’ in every eight-week period. The problem should be discussed with them in
relation to the difficulties the absenteeism is causing you, and, if there is no
improvement, they may eventually be dismissed for incapacity.

The problem of the sick leave cycle

Some employers believe that they may not dismiss employees for ill health
absenteeism until all of their statutory sick leave has been used. This is incorrect.
Absenteeism of any kind, and the handling thereof, is based on the operational
difficulties it causes and the ability of the organisation to cope with them. If the
employee’s absenteeism is causing real operating problems, then the employee
could be dismissed even though he or she still has sick leave available in his or her
cycle. The sick leave cycle reflects the amount of days which the employee is
entitled to be paid for when absent because of ill health – it is not a measure of how
many days sick-leave the employee is ‘entitled’ to.

Concluding comment

Abuse of sick leave is a costly and on-going predicament. The statutory
requirements regarding medical certificates, the eight-week rule, and the reluctance
of the medical profession to assist, will usually make it more appropriate for
employers to deal with such abuse via the counselling / incapacity route, rather than
as a form of misconduct. This may take time and patience, but it does eventually
secure the desired result.

Prof. Barney Jordaan
Director: Maserumule Consulting



This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.