Sick notes that are sick

As an employer, you need to be vigilant with checking up on employees’ sick notes — especially if the employee has a poor record in this regard. The case of National Union of Metalworkers of SA obo Kwanini /Volkswagen SA (Pty) Ltd

— (2019) 28 CCMA illustrates.

The employee was dismissed for a seven-day unauthorised absence from work. He had submitted sick notes for the full period. The employee did not attend his disciplinary hearing and claimed — in arbitration — that his dismissal was substantively and procedurally unfair.

The Commissioner accepted that the employer’s rule against unauthorised leave was reasonable.

The employee had a poor attendance record and had been warned twice about his attendance. The employer was entitled to question the medical certificate that was submitted.

The employee should have requested his doctor to explain these certificates to the company doctor. In the absence of a supporting affidavit from the employee’s doctor, the sick note could not be admitted as evidence in the arbitration as it was merely hearsay. Without valid medical evidence, the employee was unable to explain his absence from work which had correctly been treated as absence without leave. The employee was already on final warning for this misconduct. The Commissioner found it reasonable to proceed with the disciplinary hearing in the employee’s absence because the hearing had been postponed several times and all parties involved had agreed that it would proceed on the day on which it was finally held. The employee’s dismissal was upheld.

• In this weekly column, labour lawyer Jonathan Goldberg, CEO of Global Business Solutions, looks at various aspects of labour law.