The submission of medical certificates by employees facing disciplinary action is a recurring issue for employers. Employees often produce medical certificates booking them off for lengthy periods a few days before a disciplinary hearing is scheduled to proceed. This creates a conundrum for employers who are then required to grapple with the challenge of distinguishing between genuine cases of illness and attempts to delay or frustrate the disciplinary proceedings.
The status of medical certificates
Employers are under no obligation to accept medical certificates as valid justification for an employee not to attend a disciplinary hearing. Employers are entitled to scrutinise the validity of medical certificates, especially where there is a pattern of last-minute submissions or where the content of the certificate is vague or incomplete.
In such cases, employers may request additional information, such as an affidavit from the medical practitioner, or require the practitioner to attend the hearing to provide oral evidence. Employers may also reserve the right to refer the employee to a medical practitioner of their own choosing for an independent assessment at the company’s cost.
Bradley Workman-Davies and Neo Sewela 15 Dec 2020
Rule 16 of the Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act, 1974 provides that a valid medical certificate must contain, among other things, a description of the illness or condition in layman’s terms (with the patient’s consent) and must specify whether the employee is totally indisposed for duty or able to perform less strenuous tasks. If the patient does not consent to disclosure of the nature of the condition, the practitioner must at least state, based on examination, that the patient is unfit for work.
In the case of Mgobhozi v Naidoo NO & Others, the Labour Appeal Court confirmed that medical certificates amount to hearsay evidence. The court held that medical certificates should provide an explanation regarding the capacity of the employee to participate in disciplinary proceedings and that the doctor issuing the medical certificate must depose to an affidavit explaining why the employee will not be able to participate in the proceedings.
The Supreme Court of Appeal in the case of Old Mutual v Gumbi, held that little evidential value could be attached to the medical certificate submitted by the employee ahead of his disciplinary hearing. The medical certificate did not reflect an independent medical diagnosis of the illness or an opinion as to the fitness of the employee to perform his normal work, let alone his fitness to attend a disciplinary hearing. The mere production of the medical certificate was found to be insufficient, in the circumstances of this case, to justify the employee’s absence from the hearing.
Jacques van Wyk & Michiel Heyns 14 Apr 2023
Concluding remarks
Employees facing disciplinary action must be mindful that the mere submission of a medical certificate does not automatically entitle them to a postponement of proceedings. They bear the responsibility to ensure that the certificate is comprehensive, fully setting out the extent of the employee’s incapacity, including their inability to participate in disciplinary proceedings where relevant, and, if challenged, to provide further evidence of their incapacity. Employees should also be aware that repeated or poorly substantiated requests for postponement may be viewed with suspicion and could undermine their credibility.
Employers, on the other hand, need to strike a balance between ensuring that there are no undue delays and that the process followed is fair. In certain circumstances, employers may opt to conduct the disciplinary process by way of written submissions in order to circumvent what they may view as undue delays on the part of the employee.
Both employers and employees have defined roles to play in ensuring that medical certificates are used appropriately and that the integrity of the disciplinary process is maintained.
