The menace in our midst: Medical certificates 

• A fraudulent medical certificate
• An incomplete but possibly genuine medical certificate
• Compliant medical certificate; suspected abuse of sick leave situation

A fraudulent medical certificate

Situations where an employee provides a medical certificate with obvious or even less obvious signs of fraud are usually fairly easy to pick up with a proper employer verification process. This could mean that the employer contacted the practice and the practice informed the employer that:

• Dates that have been changed/scratched out and it was not issued in that way
• The incorrect public health care stamps were used vs the district requirements
• Information from the practice stating that the employee was never at the practice.
• Information from the practice stating that the document is not genuine and was not issued by the practice.
• That there is no such doctor/nurse at the practice.
• That it is not the doctor’s handwriting.
• Sometimes the contact details are not genuine and the employer cannot even reach the alleged practice.
• It also happens that the employer reaches a particular practice and the practice then confirms that there are fraudulent documents doing the rounds on another genuine practitioner’s stationery.

If the employer can obtain sufficient information from the verifying practice that the document is fraudulent, the employer could consider taking disciplinary action; and proceed with caution, being mindful of the rules of evidence and the onus to prove.

Employers must notify the HPCSA and the AHPCSA of these activities.

An incomplete but possibly genuine medical certificate

Due to the significant increase in fraudulent medical certificates and the cost of paid sick leave, employers are advised to communicate all the Rule 15 requirements to employees and only accept certificates that meet all the requirements.

Unethical practitioners are more reluctant to issue a certificate confirming a professional opinion because it could impact their registration if reported to the HPCSA or the AHPCSA.

Employees often provide certificates that do not have a diagnosis and refuse to permit the practitioner to disclose the illness. This does not mean that the employer has to accept a certificate where the practitioner is unwilling to state that in his/her professional opinion, having examined the employee, the employee is incapable of working.

Compliant medical certificate; suspected abuse of sick leave situation vs ill-health incapacity

Abuse of sick leave is a very tricky charge to prove, especially if the medical certificates that support the absences are genuine certificates issued by a genuine/registered medical practitioner.

Some pointers could be helpful indications to determine if the employee might genuinely be too sick to be employed or if there is abuse based on the matter between Mgobhozi v Naidoo NO & others [2006] 3 BLLR 242 (LAC).

The Labour Appeal Court confirmed that medical certificates without supporting evidence from doctors might amount to hearsay and courts should be especially vigilant to prevent abuse.

The court stated that the absence of supporting affidavits from doctors led to an inference that the doctors were not prepared to defend the certificate under oath.

Factors that the employer should investigate if an employee is suspected of abusing sick leave:

• Frequency of absence and the total number of days in a period.
• Whether or not the absence always happens at a particular time, e.g., Fridays and Mondays, after payday, or before or after scheduled off days in a shift pattern.
• Whether the employee provides a medical certificate or is the absence often random single days where the policy and or the law do not require a certificate.
• The employee’s conduct around the period of absence; unlikely and or contradictory information provided in the Return to Work discussion and or Investigation Meetings.
• Producing a sick certificate after an annual leave application was declined by the employer.

Sick leave is often misinterpreted by employees and used for reasons other than those stipulated in the Act. Sick leave should thus solely be used when the individual is medically unfit to perform their normal duties due to sickness or injury.

Employees should keep in mind that a multitude of valid medical certificates may result in the employer embarking on an ill-health incapacity process.

Employees have a common law duty to render services during their contracted working hours. The exception to this duty is when the employee can show that he/she has a valid reason to be absent. 

If the employee is, to no fault of their own, too sick to work regularly and reliably the law provides for the ill-incapacity process which may result in a no-fault dismissal.