The recent case of Woolworths vs Commission for Conciliation, Mediation and Arbitration and Three Others (2024) 45 ILJ 2270 (LAC) (“Woolworths v CCMA”) highlighted the dangers of reaching judgment prematurely on whether an employee is guilty of misconduct. The matter dealt with an employee, Ms Maseko, employed as a store specialist at the company’s Emalahleni branch, whose medical certificates were called into question.
The issue of theft of time is a serious one that affects all companies drastically, and abuse of sick leave falls under this umbrella. Sick leave is provided for statutorily by section 22 of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”). The BCEA prescribes, in section 22(2) that during every sick leave cycle (which endures for 36 months from the commencement of employment), an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. Therefore, employees who work five days of the week, would be entitled to thirty days of paid sick leave during their three-year sick leave cycle, while employees who work six days of the week, would be entitled to thirty-six days of paid sick leave during their three-year sick leave cycle. Sick leave does not roll over and so unused entitlement lapses at the end of the three-year cycle. It is evident, then, that the abuse of this statutorily provided sick leave has potentially stark ramifications on the finances of a company and their obligations to pay out for additional leave, while the productivity and objectives of their business are being compromised.
It follows that businesses would take stringent measures to scrutinise medical certificates and ensure that no abuse of process has occurred, as such abuse affects their bottom line. However, when suspicion of misconduct arises, a duty rests on an employer to thoroughly investigate said concern, in a manner that is fair and transparent. What had occurred with the employee in this case was that, in 2018, she had submitted a medical certificate issued by a certain Dr Frempong, whose integrity in issuing medical certificates had been called into question at a number of the employer’s branches, including the one at which Ms Maseko worked. This 2018 submission coinciding with aspersions being cast on Dr Frempong’s integrity led to a review of Ms Maseko’s file, which reflected a further medical certificate issued by Dr Frempong in 2016. Ms Maseko, however, denied that the medical certificates were issued by the same doctor, and this strengthened her employer’s suspicion that the medical certificates were purchased and not legitimate. Ms Maseko was, on this basis, dismissed and thereafter referred her matter to the CCMA.
At the CCMA, Ms Maseko stated that her 2016 medical certificate was issued by a Dr Zanele, who was later found, in fact, to be a nursing assistant to Dr Frempong. The CCMA ultimately found that there was no evidence that Ms Maseko was not sick on the days listed in the medical certificates, that her medical certificates were valid, having been issued by a qualified medical practitioner registered with Health Professions Council of South Africa (“HPCSA”) and, because this was the issue on which the charge turned, the dismissal of Ms Maseko was substantively unfair.
Woolworths took the matter on appeal to the Labour Appeal Court (“LAC”), on the basis of questionable practices being employed by Dr Frempong’s practices. The LAC found that contentions that Ms Maseko’s medical certificate must necessarily be false on the basis of potential illegal conduct by Dr Frempong, to be unsustainable. Dr Frempong certainly had the requisite credentials and experience to issue such a medical certificate. The charge did not indicate that Ms Maseko had knowingly submitted a false medical certificate, nor that she tampered with the certificate, nor that she misled the doctor to think she was sick when she was not. Regardless of whether Dr Frempong was operating unscrupulously, it was not placed in dispute that Dr Frempong was qualified to issue Ms Maseko with a medical certificate. Ms Maseko could not have been expected to personally investigate the practice of Dr Frempong and nor were his qualifications at any time seriously doubted.
The LAC dismissed the employer’s appeal against the finding of the Commissioner of the CCMA. The LAC highlighted that hearsay evidence about the integrity of Dr Frempong was “patently irrelevant”. Woolworths had not proven any misconduct on the part of Ms Maseko and the mere fact that she had seen a doctor whose integrity could be disputed, was not enough to assure her guilt by association.
This matter highlights that, if an employer has well-founded suspicions that a doctor is acting fraudulently, following a diligent investigation, then employees should be warned against using that doctor. Employees may not have the means nor the time to be particular about which doctors’ practices they attend, and would ordinarily select the doctor that is more convenient for them. The duty is on regulatory bodies to investigate malfeasance, and not on ordinary patients of medical practitioners.
Further, substantial evidence on the conduct of the employee must be gathered, and charge sheets should be drafted meticulously to focus on the available evidence to prove decisively that an employee is guilty of misconduct. Employers should avoid rushing to judgment, before being in full possession of the facts. Courts will decide misconduct cases based on available evidence and will not expect of an employee to do any more than a reasonable person in their situation would do. Therefore, it is of crucial importance to consult an attorney who is abreast with the most recent legal developments and finer points of the application of applicable Labour Legislation, to ensure that any dismissals or other disciplinary action against your employees is within the parameters of the law.
Contact solutions@adriaansattorneys.com, should you require any assistance with any Labour Law issue.
Jade Rautenbach
Candidate Attorney
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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