Employers are constantly frustrated with employees who abuse the provisions of sick leave. Can the employer take disciplinary actions if the employee attended to his personal interests whilst booked off sick, even if the sicknote is valid?
In the matter of UASA obo Adams / Atlantis Foundries (Pty) Ltd (2021) 30 MEIBC 8.37.3 after the employee was booked off for a back pain by a doctor, who recommended that he consult a neurosurgeon, the employee travelled to Namibia for a fishing trip without seeing a neurosurgeon. He was dismissed for this offence. The employee denied that he had faked a back pain, but admitted that he had gone on the fishing trip. The Commissioner noted that the essence of the charge was that the employee had obtained a medical certificate under false pretenses.
The Commissioner noted further that investigations by the employer revealed that the fishing trip which the employee had gone on, had initially been scheduled for the following week, which coincided with the Annual Leave the applicant had applied for. This fishing trip was however, for some reason or another, advanced by a week, which further fuelled the suspicion that the applicant had not been occasioned by back problems, and had merely feigned the said back problems in order to obtain a Medical Certificate to enable the “going on the fishing trip”.
The Commissioner furthermore noted: “It had become a tendency by which employees believe that if they produce a medical certificate, there is nothing that the employer can do, and which has led to abuse of Sick Leave. In spite of the validity of the Doctor’s Certificate, raising the question as to whether a Doctor’s Certificate was a complete shield to the nefarious conduct of the applicant’s not keeping the appointment with the Neurosurgeon and travelling on to Namibia for the fishing trip”.
However, despite having noted the above facts, the Commissioner still found that the dismissal of the employee had been substantively unfair. It is clear that this finding is based only on the Medical Practitioner’s direct evidence and a valid sicknote, the fact that the employee misused his sick leave and used the sicknote as a shield, was set aside just because the sicknote complied with the provisions of the BCEA.
On the other hand, in the matter of Glencore (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2018) 39 ILJ 2536 (LC) the employee applied for leave from 30 June to 16 July 2013, informing his supervisor that he wished to take leave because his son was going to attend initiation school. His request was declined based on the employer’s operational requirements. However, he insisted that, despite the refusal, he would take leave. The employee was absent for more than 6 days, after which he was charged and dismissed. Upon his return he was afforded an appeal hearing where he submitted medical certificates. The employer was not satisfied with this and upheld the dismissal. The CCMA commissioner, however, accepted the employee’s version and found that his dismissal was substantively unfair.
The matter was taken to Labour Court on review. The Court held that: “the commissioner misconceived the nature of the enquiry he was called upon to undertake, completely ignored relevant evidence, failed properly to apply his mind to material issues at hand and committed various other irregularities in the conduct of the proceedings. These irregularities deprived the employer of an opportunity of a fair trial on the issues”.
The CCMA ruling was overturned, and the dismissal was ruled as fair.
Conclusion:
As noted by the Labour Court, simply providing a medical certificate is not sufficient evidence especially when such is presented under dubious circumstances. In some matters it was held that where the validity of a medical certificate is disputed, that the employee is required to prove the validity thereof. It is advisable to always make use of a reputable expert when dealing with issues of a similar nature.