LABOUR LAW NEWS – (Sick Leave)

The employees entitlement to sick leave is covered by sections 22 to 24 of the Basic Conditions of Employment Act, 75 of 1997 (BCEA). (Better conditions may apply in companies according to internal rules or as result of collective agreements).

Our concern is not the entitlement to sick leave, over a three year cycle, but the use of medical certificates to cover the sick leave or the “self certification” for periods for which medical certificates are not required.

Although the purpose of paid sick leave is to assist an employee who cannot work due to sickness and injury, many employees do not see
it in this light. To them it is just another form of leave, which they will take whether they are ill, or not. The thinking is, apparently, that if they loose their jobs they will not get paid for the unused sick leave.

For employers the use of medical certificates is a way of establishing in a credible manner, whether the employee was indeed sick or injured.

The BCEA, in section 23, spells out when an employer can require a medical certificate before granting paid sick leave.

To recap:

  • If the employee has been absent from work for more than 2 consecutive days
  • If the employee has been absent from work on more than two occasions during any 8 week period.

It is suggested that employers can incorporate into their rules that medical certificates are required for absences, due to illness or injury, on days preceding or succeeding a weekend or public holiday.

The mere fact that a medical certificate has been provided by the employee does not necessarily mean that the employer must grant paid sick leave.

Medical certificates must meet certain requirements: –

Firstly, the medical certificate must be issued and signed by a medical practitioner or by 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.”

At present certificates issued by traditional healers are not covered by this requirement. Some companies do however accept such certificates by agreement with their employees.

The definition of a medical practitioner is a person who is entitled to practice as a medical practitioner in terms of s 17 of the Medical, Dental and Supplementary Health Services Professions Act, 56 of 1974.

Secondly, the medical certificate must state, that the employee: –

  • was unable to work
  • for the duration of the absence
  • because of sickness or injury

Before paying the employee for the absence the employer must carefully look at the wording of the certificate. If the certificate is signed by the
medical practitioner a few days after the alleged illness and states that the patient “informed me” that he/she had been ill on a certain date or dates, it does not meet the above requirements. The employer therefore need not accept the certificate as justification for paid sick leave.

Also if the certificate does not cover the whole period of absence it may be an indication that it is forged or was improperly obtained. In such instances, at the very least, payment need not be made for the period not covered by the certificate.

In this regard I wish to refer to the matter Colgate Palmolive/CWIU (1998) 8 BALR 1045 (IMSSA) where it is stated (at 1047 E-I):

“Turning to the certificates themselves, they are of some weight. However, the great difficulty with the certificates is in their wording. They do not
say that the doctor examined Mr. Shoba and found him sick. They merely state that the doctor had been advised by Mr. Shoba that he had been unfit for duty during a certain period. The certificates are so worded as to relieve the doctor of all responsibility of confirming whether or not the patient was actually ill. It is difficult in the absence of evidence from Dr. Omar to ascertain whether or not he even examined Mr. Shoba. Mr. Shoba himself said he was ill but under crossexamination was not particularly clear on what his illness was. What little he said was not in accordance with the medical certificates.

The company has the overall onus of proving that its dismissal of the applicant was fair. In circumstances such as in this case where the
offence itself is admitted, there is what is referred to as an evidentiary burden on the applicant to establish the facts of his defence. In respect of certain periods of time, there is no documentation at all, and in regard to the remaining period of time, the documentation is highly unsatisfactory. Mr. Shoba’s evidence was also unsatisfactory.

In the end result, on an analysis of all the evidence, there is not sufficient evidence before me to make a finding that Mr. Shoba was in fact ill for the period while he was away. Certainly, he has not complied with the company’s rules relating to persons on sick leave as he has not
provided certificates as required.

An aggravating factor in this matter is that Mr. Shoba did not contact the company at all during his period of absence to explain why he was ill.
He must have had ample opportunity to do this. Although he was in a rural area for a period of time, he did visit Eshowe to see a traditional healer. He then travelled back to Durban on 3 March 1997 and visited a doctor on two
occasions. He was therefore mobile and must have been able to get to a phone”.

More recently the Labour Appeal Court had the following to say in the matter Mgobhozi v Naidoo NO and others (2006) 27 ILJ 786 (LAC)

“The Evidence Act requires the court to consider the reason why the medical evidence was not provided in the form of affidavits. No reasons are
given why no affidavits have been provided. It is not suggested that the doctors have passed away, have emigrated or are unavailable for
some other cogent reason.

The absence of any such explanation is viewed in a most serious light. The cynic might observe that medical certificates are available for anyone
paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread – as I believe they are – it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.”

If a certificate has been forged or improperly obtained, the employer need not pay the employee for the period of absence. This is, off course, not easy for the employer to establish. Nothing, however, prohibits the employer from contacting the medical practitioner to check the validity of the certificate. This often entails faxing the certificate to the medical practitioner. Even if the practitioner does not wish to co-operate the
mere enquiry could have a cautionary effect on him/her.

Forgery of a medical certificate is tantamount to fraud and generally will warrant dismissal.

Notes from a Clinic:

Employees often present the employer with a note from a clinic to justify short periods of absence. Unless this is signed by a medical practitioner and the wording meets the requirements as detailed above, this is not a
medical certificate per se.

These “certificates” are normally issued by a nursing sister or even the receptionist at the clinic. Apart from the name of the patient it may even contain a patient number and will state the date and sometimes the time that the patient attended the clinic.

Bearing in mind that a “proper” medical certificate is required under specific circumstances as detailed above, then it is suggested that these
clinic notes be accepted as part of the “self certification” sick leave for short periods. Records must however be kept to be able to detect abuse – particularly on Fridays, Mondays or around paydays.

Finally, it must be emphasised that the employer may be entitled to refuse to grant paid sick leave even in circumstances where a medical certificate is not required. An example would be where an employee alleges that he was ill for one day but it is found that he was seen, in good health, attending a sports event on the same day.

Obviously this dishonest conduct would justify the taking of serious disciplinary action against the employee.

Jan Smit

Editor’s Note:

This is an infrequent newsletter distributed to members of employer’s associations that we administer, clients and fans of Novas and other
interested parties. Reading of the newsletter is entirely voluntary and the contents do not represent legal advice in any way.