The medical certificate question

The reason this happens is because of the many urban legends surrounding medical certificates. Employers believe that if the employee produces a medical certificate as justification for a period of absence, that the employer is bound to accept it and is bound to pay the employee for the period of absence. Employees also believe that if they produce a medical certificate, there is nothing the employer can do except to treat the absence as paid sick leave.

These urban legends actually lead to abuse of the system. An employee, for example, applies for five days annual leave which is refused. On the first day that the annual leave was supposed to have commenced, the employee is absent from work - and he remains absent for the next five days. Upon his return to work, he produces a medical certificate - believing that he is home and dry and that there is nothing the employer can do. All of this is not true.

Medical certificates constitute hearsay evidence. In a very recent (2006) court judgement handed down by the Labour appeal Court ( Mgobhozi v Naidoo NO & Others [2006] 3 BLLR 242 (LAC), this matter was addressed. After his dismissal for misconduct, the employee referred a dispute of unfair dismissal to the CCMA. The Commissioner ruled that the dismissal was fair.

The employee submitted a review application to the Labour Court 31 weeks outside of the time limit. He gave the reason for his late referral by claiming that he had been suffering from stress and depression, and he attached two medical certificates to his application in support of this claim. The respondent employer opposed this application claiming that the employee had exaggerated his illness. The Labour Court dismissed the application for condonation as well as dismissing the review application.

Turning to the review application, the court noted that such applications must be accompanied by affidavits setting out the evidence that would have been led at a trial. The Evidence Amendment Act 45 OF 1998 makes it clear that hearsay evidence includes evidence given in writing by a person other than the deponent to an affidavit. This means that a medical certificate, which is submitted by the employee, is evidence given in writing by another person - and therefore constitutes hearsay evidence.

Hearsay evidence is not admissible unless it is supported by other direct evidence. The court noted that the fact that the appellant in this matter had referred to the medical certificates in his sworn affidavit did not make them anything other than hearsay evidence - because he was referring to evidence in writing given by another person. These medical certificates remain hearsay evidence unless the doctor files a supplementary affidavit in support of the medical certificate.

In this case,  the employee, in his application for condonation of the late referral, had not explained why the doctors had not filed supplementary affidavits. Because it is widely perceived to that medical certificates are often abused, it was noted that the courts must be especially vigilant when medical certificates are relied upon. The court stated that the absence of affidavits from the doctors led to the inference that they were not prepared to defend the certificates under oath.

This meant that there was no supporting evidence for the " wide and vague" symptoms in the certificates that the employee was said to be suffering from. As all employers know, employees submit many medical certificates which describe the ailment as : "medical condition" or describe it as " illness"  or some such similar " wide and vague"  symptoms. The court also noted that medical certificates are widely abused - and for this reason, are regarded as hearsay evidence unless it is accompanied by a supporting affidavit from the doctor.

This is particularly important with the common practice that when an employee is facing a disciplinary hearing, on the day of the hearing he phones in stating that he is sick and is unable to attend the hearing. The following day he comes back to work waving a medical certificate which describes some vague symptoms and states that the employee was unfit for work for the day. The medical certificate does not state that he was so incapacitated as to be unable to attend a meeting such as a disciplinary hearing - and therefore in those instances, the medical certificate can simply be rejected and the hearing proceeded with as soon as the employee returns to work.

Employers do not have to accept medical certificates - such a document comprises hearsay evidence and the employer is fully entitled to query it, or, depending on circumstances, to simply reject it and take disciplinary action against the employee,  or simply treat the period of absence as unpaid leave.

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