In the recent ruling by the Labour Appeal Court (“LAC”) in the case of Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29 (13 June 2024), the intricate problem of submitting a fraudulent Medical Certificate in the South African workplace is highlighted.
FACTS:
In June 2018, the Fourth Respondent, Ms. Lorain Maseko (“Ms. Maseko”), an employee of the Appellant, Woolworths (Pty) Ltd (“Woolworths”) submitted a Medical Certificate issued by a Dr Frempong. Woolworths, who had previous suspicions about Dr Frempong, decided to investigate by looking into the employee file of Ms. Maseko and Dr Frempong himself. In the process of their investigation, it was discovered by Woolworths that in March 2016 a previous Medical Certificate was issued by Dr Frempong. When questioned on the Medical Certificates, Ms. Maseko proceeded to answer that the same doctor did not issue the Medical Certificates.
Woolworths concluded their investigation by determining that Dr Frempong was selling Medical Certificates. It was also determined that the Medical Certificate submitted by Ms. Maseko was irregular. Ms. Maseko was charged with misconduct due to her breach of company policies and procedures due to her submission of an irregular Medical Certificate to explain her absence from work. Ultimately, she was found guilty and dismissed by Woolworths.
CCMA AND LABOUR COURT
Ms. Maseko referred her dismissal to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) as an unfair dismissal. The Commissioner ruled in favor of Ms. Maseko. The Commissioner ruled that her dismissal was substantively unfair based on the reasoning that Woolworths did not have evidence which could support that Ms. Maseko was not sick on the days for which she had submitted the Medical Certificates. The Commissioner also found the Medical Certificates submitted by Ms. Maseko to be valid and regular. This ruling was based on the documentary evidence provided to transmit Dr Frempong’s qualifications, experience, and registration with the relevant authorities, which confirmed that he was a duly qualified and registered Medical Practitioner.
Following the ruling in the CCMA, Woolworths opted to challenge the decision by seeking a review in the Labour Court. The Labour Court dismissed Woolworths’ review Application ruling that it lacked merits.
LABOUR APPEAL COURT
In their Appeal to the Labour Appeal Court (“LAC”), Woolworths argued that there were suspicions and hearsay evidence regarding irregularities at Dr Frempong’s Medical Practice, implying that the Medical Certificates issued might not have been legitimate. However, the LAC rejected Woolworths’ arguments.
The LAC emphasized that the critical issue was whether Ms. Maseko had consulted Dr. Frempong on the days in question and whether he had legitimately certified her as unfit for work. The Court highlighted that once these facts were established, Ms. Maseko had fulfilled her obligation regarding the Medical Certificates. The LAC expressed concern over the prospect of an employee facing disciplinary action based solely on an employer’s suspicions about the practices of their Medical Practitioner, especially when the employee may genuinely be sick and unaware of any irregularities.
Ultimately, the LAC concluded that Woolworths’ dissatisfaction with Dr Frempong and the hearsay evidence about alleged misconduct at his practice were irrelevant to the case. As a result, the LAC dismissed Woolworths’ appeal, affirming the decision that Ms. Maseko’s dismissal was substantively unfair.
It is important to note that if an employee knowingly submits an irregular medical certificate, dismissal may be warranted due to the seriousness of dishonesty and fraud involved. It is the employee’s responsibility to exercise due diligence by verifying the doctor’s credentials on https://hpcsaonline.custhelp.com/app/i_reg_form to avoid inadvertently committing misconduct.