Abuse of sick leave by employees is a pandemic that affects many employers. Most employers have experience of employees staying away at the drop of a hat and then submiting a very dubious medical certicate as evidence of their indisposition. Often employees feel that a medical certificate is irrefutable and an employer has no choice but to accept the illness of the employee. Is this really the case though?

It is common knowledge that employees are entitled to sick leave from the day they commence employment. The Basic Conditions of Employment Act recognises this right and allows an employee to prove his/her incapacity to work by producing a medical certificate signed by a medical practitioner. 

But what happens when an employee develops a pattern of sick leave or applies for annual leave which is declined and then dissapears for the same number of days on sick leave and produces a medical certificate upon his/her return? Is the employer compelled to accept this medical certificate?

Fortunately for employers, our courts have taken cognisance of the abuse by employees of sick leave and recognises that it would be unfair for an employer to be held hostage by an employee’s submission of a medical certificate, particularly given the ease with which the use of a medical certificate is abused.

In a recent labour case the importance of proceeding with caution in respect of medical certificates was expressed. It was held that the certificate was not conclusive proof of the inability to report for duty and that medical certificates need not be accepted at face value as they constitute hearsay evidence - evidence submitted by a person (the employee) who is not the person who made the statement (ie. the medical practitioner) - and thus do not stand as irrefutable proof of the employee’s condition. 

This means that an employer is entitled to query the validity of a medical certificate by requiring further supporting documentation from the medical practitioner in question or may in certain circumstances, reject the certificate and treat the period of absence as unpaid leave and even institute disciplinary action against the employee. The witholding of payment from the employee is not in itself punishment as it relates to the principle of “no work no pay”. 

To institute disciplinary action, the employer must show that the submission of the medical certificate warrants disciplinary measures. For example, where an employee has developed a pattern of absence for which he submits certificates, this can be seen as a motivating factor for rejecting the certificate and taking disciplinary steps. Or, where the certificate lacks the following aspects, it could represent grounds for showing a false certificate:

• If it fails to cover the period of absenteeism;
• If it appears to be an amended medical certificate;
• If a blank medical certifcate was filled in by the employee in an attempt to misrepresent his/her actual health;  or
• If the medical certificate was obtained from a person who is not a medical practioner.

In order to prove guilt in a disciplinary hearing, the employer must be able to show that the certificate was submitted in an attempt to mislead the employer. Where an employee is found guilty of knowingly submitting false medical certificates, this could constitute grounds for dismissal.

An employer should accordingly monitor and record periods of absence by employees to determine patterns in leave taking which may point to abuse of sick leave.

It may be prudent where sick leave abuse appears to be a regular occurrence in an organisation, to obtain the advice and assistance of a labour expert to assist where necessary with the institution of appropriate disciplinary action.