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Johan van Deventer - Medical aid certifcates - a free pass?

Johan van Deventer - Medical aid certifcates - a free pass?

There is a common misconception among employees that a medical certificate is a free pass to get out of work and do whatever they please for the duration of their time off. This, however, is not the case, and the purpose of a medical certificate booking an employee off is to allow them time to rest and recuperate from their illness. Using this time off to attend other leisure activities, such as attending concerts or going on extended trips, would defeat the purpose of the sick leave and could be considered an abuse, and possibly dishonesty.

The situation was most aptly canvassed in Woolworths (Pty) Ltd V Commission for Conciliation, Mediation & Arbitration & Others (2022) 43 ILJ 839 (LAC).

In this case, an employee had taken sick leave on a particular day, only to travel one hour from Jeffrey’s Bay to Port Elizabeth to support his local rugby team. The enough to work. His dismissal was deemed substantively and procedurally fair.

In another case, NEHAWU obo Matras v Commission for Conciliation, Mediation and Arbitration and court found that the employee had acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties, but then travelled quite a distance to watch the match, knowing full well that he would be paid for the day. The employee had claimed that he felt better at the time he attended the match, to which it was stipulated that he should then have returned to work, rather than attending recreational activities at the employer’s expense.

The court held that this was the case even in the absence of a policy dictating what employees recovering from illness may and may not do. It was held that if the employee felt well enough to travel and attend the match, he was also well Others (JR1970/17) [2021] ZALCJHB 285, an employee had been booked off sick for three days, during which time he had travelled from Potchefstroom to George to attend a family member’s wedding. The employer suspected that the employee had obtained the medical certificate fraudulently by misrepresenting his illness to the medical practitioner to be booked off. This suspicion stemmed from the fact that the employee had previously spoken to his manager about possibly putting in leave for this time to attend the wedding.

The employee argued that the company could not challenge his claim that he was ill at the time, as he submitted a valid medical certificate which had not been disputed, and the company had failed to call the medical practitioner as a witness to challenge the legitimacy of the employee’s claim. The court, however, pointed out that the medical certificate was hearsay evidence, and the onus was on the employee to verify the document by calling the witness once the employer cast doubt on its legitimacy. The arbitrating commissioner hence correctly gave little weight to the medical certificate and relied on compelling circumstantial evidence to conclude that the employee did in fact attend the wedding in George. The employee was found to have acted dishonestly, and his dismissal was upheld by the Labour Court.

It is advisable to formulate a policy in the workplace governing sick leave for employees and giving guidance to employees on what activities are acceptable when they are booked off sick. It should also address what steps employees should take if they feel better during the time they are booked off. At the very least, they should inform the employer that their condition has improved, so that the company may decide whether they should return to work.

In all instances, the consideration will always be what is fair to both parties, and both employer and employee should act in good faith when dealing with bouts of illness.

For any further information or assistance in this regard, please do not hesitate to contact us.

T: +27 (0)31 266 6570

C: +27 (0)82 786 7480



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