Va­lid­ity of med­i­cal notes

Rules re­lat­ing to the ad­mis­si­bil­ity of ev­i­dence ap­ply in the Labour Court when con­sid­er­ing th­ese med­i­cal cer­tifi­cates

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - LAV­ERY MODISE & ATHI JARA

MOST em­ploy­ers’ hu­man re­sources poli­cies make pro­vi­sion for em­ploy­ees to pro­duce med­i­cal cer­tifi­cates when they have been ab­sent from work due to ill health.

The rea­son for do­ing so is to avoid the abuse of sick leave by em­ploy­ees who are not gen­uinely sick when they are ab­sent from work.

It has of­ten been es­tab­lished that some med­i­cal prac­ti­tion­ers col­lude with em­ploy­ees by is­su­ing sick notes in cir­cum­stances when an em­ployee is not sick. In cer­tain in­stances em­ploy­ers have re­fused to ac­cept sus­pi­cious med­i­cal cer­tifi­cates to the ex­tent of seek­ing clar­i­fi­ca­tion from doc­tors on the na­ture of an em­ployee’s ill­ness, be­cause of the in­ad­e­quate in­for­ma­tion that ap­pears on the med­i­cal cer­tifi­cate, among oth­ers, re­gard­ing the na­ture of an em­ployee’s sickness and fail­ing to say when an em­ployee would be fit to re­sume work.

Fair­ness and fair­ness alone is the yard­stick in labour law. In ap­ply­ing and up­hold­ing the re­quire­ments of fair­ness the Labour Court also en­deav­ours to up­hold the law. There­fore, all rules re­lat­ing to the ad­mis­si­bil­ity of ev­i­dence are also ap­pli­ca­ble in the Labour Court when con­sid­er­ing the au­then­tic­ity of a med­i­cal cer­tifi­cate.

In Old Mu­tual Life As­sur­ance Co SA Ltd v Gumbi the court found against an em­ployee who had pro­duced a vague med­i­cal cer­tifi­cate which dis­closed his ill­ness as “ten­sion headache” and “en­teri­tis”. The court said that lit­tle ev­i­den­tial value could be at­tached to the cer­tifi­cate. The court also said that in cases where the em­ployee had known about an ill­ness be­fore the hear­ing or was truly ill, the em­ployee should have ap­plied for a post­pone­ment and that the mere pro­duc­tion of a cryptic, un­clear and vague med­i­cal cer­tifi­cate was not in the cir­cum­stances suf­fi­cient.

The courts have also or­dered doc­tors to de­pose to af­fi­davits in af­fir­ma­tion to the med­i­cal cer­tifi­cates that they is­sued. In Mgob­hozi v Naidoo NO & Oth­ers, the Labour Ap­peal Court held that fur­ther af­fi­davits had to be filed by the doc­tor as ev­i­dence that the em­ployee had in fact been ill.

In the ab­sence of an af­fi­davit from the doc­tor, af­ter the med­i­cal prac­ti­tioner had failed to de­pose to one, the court drew an ad­verse in­fer­ence that the doc­tor was not will­ing to de­fend the med­i­cal cer­tifi­cate un­der oath. In cer­tain cir­cum­stances, em­ploy­ers have re­ferred their em­ploy­ees to be ex­am­ined by doc­tors of their choice in or­der to sat­isfy them­selves that the em­ployee was gen­uinely sick and un­able to work due to ill health.

Fac­tors that will be con­sid­ered by the court and ques­tions that em­ploy­ees have to ask them­selves when con­sid­er­ing us­ing a med­i­cal cer­tifi­cate as a rea­son for non-com­pli­ance with their con­tract of em­ploy­ment or poor per­for­mance are:

Does the med­i­cal cer­tifi­cate ex­plain what is wrong with the em­ployee (that is the di­ag­no­sis)?

Does the med­i­cal cer­tifi­cate dis­close the true na­ture of the em­ployee’s al­leged ill­ness?

Does the med­i­cal cer­tifi­cate say what treat­ment the em­ployee will need to un­dergo?

Does the med­i­cal cer­tifi­cate dis­close that the em­ployee is un­fit to at­tend work, a Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion (CCMA) hear­ing or court and the rea­sons for this in­ca­pac­ity?

Is the em­ployee de­lib­er­ately try­ing to frus­trate the pro­ceed­ings?

Some em­ploy­ers have re­fused to ac­cept stan­dard printed forms, which are sim­ply com­pleted by the doc­tor.

In Old Mu­tual Life As­sur­ance the court held that a stan­dard form con­tain­ing printed and hand­writ­ten parts will not suf­fice as proof of an em­ployee’s sickness.

Be that as it may, the above le­gal prin­ci­ples must be con­sid­ered in the light of the doc­tor–client priv­i­lege which ex­ists in law. This, how­ever, should not be seen as a way out of not com­ply­ing with court or­ders. In th­ese cir­cum­stances the court may or­der that such ev­i­dence be heard sep­a­rately.

Pic­ture: STOCK.XCHNG

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