THE RISE OF FRAUDULENT MEDICAL CERTIFICATES – WHEN MAY AN EMPLOYEE BE DISMISSED?

Fraudulent medical certificates are no new phenomenon within the workplace. The Labour Appeal Court (“LAC”) recently addressed the issue of employees allegedly furnishing fraudulent medical certificates to their employers in the judgments of Sibanye Rustenburg Platinum Mine v Association of Mineworkers and Construction Union obo Sono and Others (JA32-2022) [2024] ZALAC 23 (2 May 2024) (1) (“Sibanye case”) and Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA90/2022) [2024] ZALAC (13 June 2024) (“Woolworths case”). 

In the Sibanye case, fifty-nine (59) employees were dismissed by Sibanye Rustenburg Platinum Mine (“Appellant”) for submitting false medical certificates. After the Appellant’s investigation into the alleged fraud was investigated, a disciplinary enquiry was convened and the employees were subsequently dismissed. The Commission for Conciliation, Mediation and Arbitration (“CCMA”) confirmed the fairness of the employee’s dismissal after the Association of Mineworkers and Construction Union (“AMCU”) referred an unfair dismissal dispute to the CCMA on behalf of its members. Dissatisfied with the commissioner’s award that the dismissal of the employees was substantively fair, AMCU launched a review application in the Labour Court (“LC”), on the basis that the commissioner failed to consider mitigating and aggravating factors, the inconsistency of discipline by the Appellant and the severity of the dismissal sanction.

The LC agreed with AMCU that the commissioner adopted a “one-size-fits-all” approach and failed to consider the individual circumstances of each employee insofar as the sanction of dismissal was concerned. The LC found that the commissioner failed to consider mitigating factors and ordered that the matter be remitted back to the CCMA for a hearing on the issue of sanction. The Appellant took the matter on appeal to the LAC, who disagreed with the decision of the LC with respect to the issue of sanction. The LAC found that the CCMA commissioner was confined to determining only whether AMCU members were guilty of the misconduct charges against them, as the parties delineated the issues in dispute in their signed pre-arbitration minutes. Therefore, the commissioner’s focus on this limited issue was fair and fell within the ambit of reasonableness required. The LAC inter alia, found that the facts of the case revealed the following:

  1. The employees submitted fraudulent medical certificates and as a result, received payment for the days they did not work;
  2.  The medical certificates were purportedly issued by Platinum Health but stamped at the RPM Hospital;
  3. The employees in question did not visit Platinum Health as recorded in the medical certificates; 
  4. The medical certificates were signed by the same unknown person without their initials, surname or a serial number appearing thereon;
  5. The employees submitted the medical certificates with one motive, namely to deceive the Appellant in circumstances in which the Appellant had a zero-tolerance approach in as far as dishonesty and fraud are concerned;
  6. The misconduct committed by the employees was of a serious nature and was grossly dishonest; and 
  7. Such conduct patently undermined the trust relationship between the parties.

For these reasons and based on the signed pre-arbitration minutes between the parties, the LAC held that the LC erred in finding that the commissioner reached an unreasonable decision. The LAC therefore upheld the appeal and dismissed the review application. 

Shortly after the Sibanye case was heard, the LAC was again tasked with hearing a matter involving fraudulent medical certificates. In the Woolworths case, an employee (“Ms. M”) was dismissed by Woolworths (Pty) Ltd (“Appellant”) for misconduct in that she allegedly breached company policies and procedures by submitting an irregular medical certificate on 26 June 2018 to justify her absence from work.  Ms. M subsequently referred an unfair dismissal dispute to the CCMA. At the CCMA, two (2) of the Appellant’s managers testified as witnesses, giving account of the investigation procedure followed by the Appellant in establishing the veracity of the medical certificate Ms. M submitted on 26 June 2018 as well as a previous medical certificate found in Ms. M’s file, appearing to be issued by the same doctor in 2016. The witnesses testified that they personally visited the doctor’s office (“Dr. F”) and, based on their observations believed that patients were buying medical certificates from the practice. They noted that Dr. F’s office was untidy and dilapidated, he had a makeshift consultation room and no visible filing cabinets. They also noted that Dr. F was not dressed in any medical attire and that his appearance was unhygienic. All of which led them to believe that Dr. F was not a real doctor. They further testified that Ms. M was dishonest when first questioned about the two (2) medical certificates. When asked whether she previously consulted Dr. F prior to 26 June 2018, Ms. M denied doing so and stated that the medical certificate in her file from 2016, was issued by a different doctor at a different practice. 

During the arbitration proceedings, it was revealed that Dr. F , had two (2) separate offices, one of which was run by his assistant (“Ms. Z”), who is not a qualified doctor. It was Ms. Z who assessed Ms. M in 2016 and issued the first medical certificate. Dr. F, also testified at the arbitration hearing on behalf of Ms. M and confirmed that he first examined Ms. M on 26 June 2018, and that the medical certificate of even date was completed by him, in his own handwriting and signed by him. According to Dr. F, he frequently left signed medical certificates with Ms. Z, whom he gave permission to assist patients and it was one of these certificates that Ms. M received during her visit in 2016. Dr. F also denied selling medical certificates and testified about his qualifications, skills and experience as a doctor, and confirmed that he was registered with the Health Professions Council of South Africa (HPCSA). Ms. M also testified that she did not suspect anything amiss about the medical certificates she submitted to her employer and only discovered that Dr. F had two (2) separate offices when she approached him and Ms. Z, who she later discovered was in fact his assistant for copies of her medical files in order to prepare for the disciplinary hearing. 

The commissioner ultimately found that there was no evidence to show that Ms. M was not sick in March 2016 and June 2018 during the days on which she submitted medical certificates. He concluded that the medical certificates submitted by Ms. M were valid and regular, having been issued by a qualified and registered medical practitioner. Ms. M’s dismissal was therefore found to be substantively unfair.

The Appellant, however, approached the LC seeking to review and set aside the commissioner’s arbitration award. The LC found, on a consideration of all the evidence that was before the commissioner, that he made a decision that a reasonable decision-maker would have reached and that the evidence justified his decision. Still discontent, the Appellant approached the LAC, appealing the decision of the LC. The LAC found that the Appellant’s reason for taking the matter on appeal was unsustainable on inter alia, the following grounds:

  1. The Appellant’s approach to the matter was that because of what it calls ‘untoward’ happenings at Dr. F’s medical practice in respect of the alleged but not proven issuing and buying of medical certificates, Ms. M was not sick on 26 June 2018;
  2. The Appellant’s reasoning will result in all employees who may be genuinely sick, who may not even be aware of alleged unconventional methods and illegal issuing of medical certificates by their doctor, being subjected to disciplinary process for using that doctor;
  3. The commissioner found documentary evidence of Dr. F’s qualifications and extensive experience as a doctor and found that he was registered with the HPCSA, the South African Dental Council and had a Dispensing Certificate issued by the Health Science Academy;
  4. None of the evidence presented by Dr. F was put into question at the arbitration hearing;
  5. The basis on which Ms. M was alleged to have submitted an irregular medical certificate on 26 June 2018 was not in relation to Ms. M knowingly obtaining an irregular medical certificate and using it to validate her absence from work. It was not in relation to her having tampered with a proper medical certificate by altering it or doing anything to change it from what Dr. F intended it to communicate to the employer. Nor was it a case of Ms. M having somehow and by sheer pretence misleading or convincing Dr. F that she was sick when she was not to avoid being at work;
  6. The charges against Ms. M emanated from the Appellant’s witnesses being dissatisfied with how Dr. F doctor chose to run his practice;
  7. The hearsay evidence about other people allegedly buying medical certificates was not relevant to Ms. M, even if it was true that those individuals were sold medical certificates by Dr. F or his staff when they were not sick;
  8. A doctor who is otherwise qualified and dabbles in some or other illegal activity is not disqualified from examining people and booking them off sick;
  9. An employer should investigate their suspicions about the contraventions of standard operating procedures by a doctor and if the suspicions are well-founded, Ms. Ms should be warned about using that particular doctor once valid grounds have been established. Such investigation would necessarily include state entities such as the HPCSA and other similar regulatory bodies; and
  10. Ordinary people, including workers cannot be expected to conduct an investigation into which doctors are qualified, on suspension, and/or for some or other reason not entitled to practice as doctors. That is the function of the regulatory bodies.

According to the LAC, the real issue was whether or not Ms. M saw the registered doctor on the day in question and whether he booked her off sick for four (4) days. Once these questions were answered in the affirmative by Dr. F, the LAC was of the view that there was nothing else required of Ms. M. For the above reasons, the LAC found that the LC correctly concluded that there was no reason to interfere with the commissioner’s award. The Appellant’s appeal was therefore dismissed. 

 

Based on the aforementioned judgments, employers are encouraged to avoid hasty dismissals for reasons related to inter alia, employee’s submitting fraudulent medical certificates, without justification and/or evidence of the employee:

  • submitting false medical certificates to deceive the employer;
  • knowingly obtaining an irregular medical certificate to avoid attending work;
  • tampering with a proper medical certificate by altering it or doing anything to change it from what the doctor intended it to communicate to the employer; and/or
  • misleading or convincing the doctor that they were sick when they were not to avoid being at work.

Where none of the aforementioned grounds are present, employers are encouraged to approach the relevant state and medical authorities to report suspicious activities by medical practitioners. Should valid grounds be established, the Employer may instruct employees to avoid consulting such practitioners. Employees are also cautioned against submitting medical certificates, from medical practitioners who are not certified to diagnose and treat patients; and who are not registered with a professional council (as prescribed in section 23 (2) of the Basic Conditions of Employment Act 75 of 1997, as amended), as this may result in the certificate not being accepted by their employers.

Andrea Miguel – Candidate Attorney 

JUSTINE DEL MONTE & ASSOCIATES INCORPORATED