Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a “what if” question on the ever‑evolving landscape of employment law.
I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we will be unpacking:
What if an employee submits a medical certificate – but never properly reports their absence: what are the legal considerations and implications?
Introduction
Absenteeism remains a persistent and costly challenge in South African workplaces. In modern operations – particularly call centres, shift‑based environments and service industries – employee availability is not just expected, it is actively managed to meet client and operational demands.
In that context, South African labour law has effectively recognised that an employee bears a positive and reciprocal obligation to notify their employer when they will be absent, and, as far as reasonably possible, to indicate the expected duration of that absence. Many employees assume that producing a medical certificate when they return to work resolves all problems linked to their absence; however, recent case law confirms that proof of illness does not cure a failure to communicate timeously.
Background and Facts
The recent Labour Court matter of
Mqulwana v CCMA & Others, arose from a dismissal dispute following an employee’s failure to notify his direct line manager that he would be absent from work on the 21st of April 2021.
On the 19th of April, the employee had suffered a nosebleed at work, was referred to a nurse, and then consulted a doctor, who booked him off until the 22nd of April. On the 20th of April, the employee attended at work and told the operations manager that he had been booked off, but crucially he did not say for how long and did not provide a copy of the medical certificate, even though it already reflected that he would be off until the 22nd of April.
On the 21st of April, the employee did not report for duty, and he did not contact his line manager or anyone else to confirm that he would be absent that day. His line manager attempted to call and message him, but the employee’s phone had been stolen, so those attempts were unsuccessful.
Importantly, the employee lived with family members who had phones and he knew, or could easily have obtained, his manager’s contact details, but he chose not to ask anyone to assist him in communicating his absence.
This was not the first time the employee had failed to communicate. The employee had already received three prior warnings, of increasing seriousness, for similar failures to notify his manager when absent from work.
CCMA Award and Labour Court Review
At arbitration, the commissioner accepted that the employee was genuinely ill and in possession of a valid medical certificate. However, the commissioner found him guilty of breaching the rule that required him to inform his line manager when he would be absent and to comply with the employer’s reporting procedures. In light of his disciplinary record, the commissioner held that dismissal was substantively fair.
The employee took the award on review to the Labour Court, arguing in essence that he was being punished simply for being ill and that presenting a medical certificate on his return should have been sufficient. He also suggested, more faintly, that disciplining him in these circumstances amounted to unfair discrimination on the ground of illness.
The Labour Court rejected these contentions and dismissed the review. The Court held that there was no proper discrimination claim before the commissioner and, in any event, the rule he had breached was about communication and reporting, not about whether he was ill. The Court found that the commissioner’s factual findings and the decision to uphold dismissal were outcomes a reasonable decision‑maker could reach.
Core Legal Principles
The judgment, read together with existing case law, confirms several important points for practice:
- A medical certificate addresses incapacity or unauthorised absence, but it does not in itself address misconduct flowing from a failure to obey workplace rules on communication.
- The failure to report absence timeously is a distinct form of misconduct, often reflected in policies as “absence without notification” or “failure to follow reporting procedures”.
- The obligation to communicate is immediate and ongoing: once an employee realises they will not report for duty, they must, within reason, notify the employer and indicate how long they expect to be away.
- Lastly; Producing a medical certificate only upon return does not retroactively fix the breach where the employee could reasonably have communicated earlier, including through alternative channels if their own device is unavailable.
In this case, the employee’s phone theft did not absolve him, because family phones and other practical means of communication were available and he had already been instructed on how to obtain his manager’s contact details.
Practical Lessons for Employers
- Ensure your policies clearly separate incapacity (ill‑health) from misconduct (failure to report), and that employees know they must notify you as soon as they know they will be absent and, where possible, for how long.
- Publish contact numbers and reporting procedures in policies and visible workplace notices so there is no excuse that “I did not have the number.”
- When employees claim they could not communicate, interrogate whether alternative means – family phones, email, colleagues, or other channels – were reasonably available in the circumstances.
- Lastly; Use progressive discipline, but escalate when needed. Repeated failures to report, especially after prior warnings, will justify dismissal where the rule is clear, consistently applied, and the operational impact is real.
Ultimately, the lesson is simple: illness may excuse absence – but it does not excuse silence.
That brings us to the end of this week’s discussion. Thank you for joining us. I hope you have found our discussion informative. If you have any questions or comments, we would love to hear from you – you can find us on social media, or email me at ross@masconsulting.co.za.
Until next time – good‑bye.
View the case: Labour Court matter of Mqulwana v CCMA & Others
