The Labour Appeal Court has ruled that even when a doctor’s office resembles a crime scene, it doesn't justify dismissing an employee for using their sick note. A case involving Woolworths exposes the intricate dance between suspicion and evidence in the fight against fraudulent medical certificates.
A recent Labour Appeal Court decision in Woolworths (Pty) Ltd v CCMA has shed light on the complex issue of fraudulent medical certificates in South African workplaces. This case, involving an employee dismissed for allegedly submitting an irregular medical certificate, highlights the delicate balance between protecting employers’ interests and safeguarding employees’ rights.
Woolworths dismissed an employee for submitting what they alleged was an irregular medical certificate in 2018. Lorain Maseko had submitted a medical certificate from a Dr Frempong that raised suspicion as Woolworths had received warnings about questionable certificates from this doctor. Upon investigation, Woolworths discovered the employee had previously submitted a certificate from the same doctor in March 2016, though Maseko claimed the 2016 certificate was from a Dr Zanele.
Woolworths conducted an investigation into Dr Frempong’s practice, concluding that he might be selling fake medical certificates.
Woolworths’ suspicions about the validity of Dr Frempong’s sick notes arose from several factors:
- It had received an email warning from a sister store about suspicious medical certificates issued by Dr Frempong.
- When investigating Dr Frempong’s practice, Woolworths managers observed what they believed to be people negotiating the purchase of medical certificates.
- Patients were entering and exiting Dr Frempong’s consultation room very quickly, sometimes in less than a minute, emerging with medical certificates.
- Dr Frempong’s consultation room was untidy, with copies of medical certificates and a stamp visible.
- The surgery did not look like a typical doctor’s office, with non-functional gym equipment, torn posters and curtains in poor condition.
- Dr Frempong did not appear professional, lacking a white coat or stethoscope, and having long nails and an unkempt appearance.
- The managers claimed to have overheard conversations suggesting that sick notes were being sold for specific amounts of money.
- There were discrepancies in Maseko’s account of who had issued her previous sick note in 2016. She initially claimed it was from a Dr Zanele, but it was later found to be on Dr Frempong’s letterhead.
- The managers were suspicious of the practice of pre-signed sick notes being left with Dr Frempong’s assistant, Zanele, who was not a qualified doctor.
Despite these suspicions, the court ultimately found that they were not directly relevant to determining whether Maseko’s specific medical certificates were valid, or whether she was genuinely ill on the days in question.
Woolworths charged the employee with misconduct for submitting an irregular certificate and dismissed her after finding her guilty.
The employee referred an unfair dismissal dispute to the CCMA. At arbitration, Woolworths presented evidence about their suspicions regarding Dr Frempong’s practice. The employee and Dr Frempong testified that the certificates were legitimate and that she had been genuinely ill on both occasions.
The medical certificates were valid and regular
The arbitrator found in Maseko’s favour, concluding that the medical certificates were valid and regular, having been issued by a qualified and registered medical practitioner. The arbitrator ruled that the employee’s dismissal was substantively unfair.
Woolworths sought to have the arbitration award reviewed and set aside by the Labour Court, but its application was dismissed. The court found that the arbitrator’s decision was reasonable based on the evidence presented. Woolworths then appealed to the Labour Appeal Court against the Labour Court’s judgment.
The Labour Appeal Court held that there was no evidence to suggest that the employee was not genuinely ill when she obtained the medical certificates in 2016 and 2018. Dr Frempong’s qualifications as a medical doctor were not seriously disputed and he confirmed issuing the 2018 certificate after examining Maseko.
Suspicions about Dr Frempong’s practice methods were irrelevant to determining whether the employee’s specific medical certificate was irregular. Employees cannot be expected to investigate doctors’ qualifications or registration status before consulting them.
Woolworths failed to discharge the onus of establishing that the commissioner committed misconduct, a gross irregularity in conducting the proceedings or exceeded his powers. Even if there were “untoward happenings” in Dr Frempong’s practice, this was irrelevant to whether the employee’s specific medical certificate was irregularly sought or issued.
Woolworths’ suspicions about Dr Frempong’s practice were numerous and seemingly well founded. They had received warnings about his certificates, observed questionable practices at his surgery, and noted unprofessional appearances and behaviours.
Insufficient grounds for dismissal
However, the court’s ruling emphasises that such general suspicions are insufficient grounds for dismissal. Employers must provide concrete evidence that a specific medical certificate is fraudulent and that the employee knew or should have known this.
This decision sets a high bar for employers, potentially making it challenging to address the widespread issue of fraudulent medical certificates effectively. The scourge of fake sick notes is a significant problem in South Africa, undermining workplace trust and leading to financial losses. It’s a complex issue that affects both employers and employees, as illustrated by this case.
It’s crucial to note that issuing fraudulent medical certificates is a serious offence. Medical practitioners can face arrest and criminal charges for such actions, as reportedly happened with Dr Frempong and his assistant.
Similarly, employees who knowingly obtain and use fraudulent certificates can face dismissal and criminal charges. However, the burden of proof lies squarely with the employer.
Read more in Daily Maverick: In an age of rising populism, who should be ‘deplatformed’?
The court’s stance that employees cannot be expected to investigate doctors’ qualifications or registration status before consultation is reasonable. It would be concerning if employees were dismissed for unknowingly using a doctor whose practice was later found to be questionable.
This underscores the need for clear communication between employers and employees about approved medical practitioners and the importance of obtaining legitimate medical certificates.
Interestingly, in this case, while Woolworths’ management was aware of potential issues with Dr Frempong’s certificates, they did not explicitly warn employees or prohibit them from using his services. This lack of communication probably played a role in the court’s decision.
The judgment is well reasoned. It emphasises that in review proceedings, the question is not whether the arbitrator’s decision was correct, but whether it was reasonable based on the material presented. The court found no reason to interfere with the original arbitration award, concluding that the commissioner’s decision was justified by the evidence presented.
This case highlights the need for employers to implement clear policies and guidelines to help employees avoid inadvertently using questionable medical services. It also underscores the importance of thorough investigations and concrete evidence when suspecting fraudulent medical certificates, rather than relying on general suspicions about a doctor’s practice.
While the issue of fake medical certificates remains a serious concern in South Africa, this case underscores the need for a balanced approach. Employers must be vigilant and proactive in addressing potential fraud, but they must also respect employees’ rights and the presumption of innocence. Clear communication, well-defined policies, and thorough, specific investigations are key to navigating this complex issue.
The case serves as a valuable precedent in South African labour law. It reminds us that while combating fraudulent medical certificates is crucial, it must be done in a manner that respects due process and employees’ rights. As we move forward, finding this balance will be essential in maintaining trust and fairness in South African workplaces. DM
Daily Maverick’s journalism is funded by the contributions of our Maverick Insider members. If you appreciate our work, then join our membership community. Defending Democracy is an everyday effort. Be part of it. Become a Maverick Insider.