But a medical certificate produced by an employee to justify a period of absence constitutes hearsay evidence, which employers are entitled to challenge.
That challenge shifts the onus to employees to prove indisposition.
While employers generally believe that if an employee produces such a medical certificate, the employer must accept it and pay the employee for the period of absence there are instances where an employer may query the validity of the medical certificate, particularly when the employer suspects foul play, dishonesty and misrepresentation.
In a recent article, we discussed how the abuse of sick leave undermines the employer-employee relationship. Our courts have made it clear that they will not come to the aid of employees who engage in such dishonest conduct. In this article, we discuss the proactive measures employers can take to avoid a matter going to court in the first place.
When considering the validity of the medical certificate, an important issue an employer must appreciate is that a medical certificate constitutes hearsay evidence and is to be evaluated in terms of the Law of Evidence Amendment Act. This means that a medical certificate submitted by the employee is evidence given in writing by another person and therefore constitutes hearsay evidence.
Hearsay evidence may be generally admissible in three circumstances:
In the context of a medical certificate constituting hearsay evidence, it should not be admitted unless:
In applying the Law of Evidence Act to medical certificates, the Labour Appeal Court, in Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC) (Mgobhozi), approached the issue as follows:
In NUMSA v Kaefer Energy Projects (2022) 43 ILJ 181 (LC) the Labour Court, in applying the principles contained in Mgobhozi, held that when a medical certificate is challenged, the onus shifts to the employee.
Firstly, the employee must prove that he or she was indisposed and, secondly, the extent of incapacity.
In this matter, the Labour Court further held that the employee did not discharge this onus when the employer challenged the medical certificate. Therefore, the employee was not entitled to rely upon a medical certificate to justify his absence from the workplace.
While the BCEA makes provision for sick leave and allows employees to provide medical certificates, employers do not have to accept medical certificates, because they comprise hearsay evidence.
Depending on the circumstances, the employer is entitled to query or reject the medical certificate, and where necessary take disciplinary action against a dishonest employee.
Employers must be proactive and should regularly remind their employees that the abuse of sick leave will not be tolerated, as it may result in disciplinary action.