Medical certificates and what they’re worth

How much is a medical certificate worth? Does it provide sufficient proof that an employee was, for a given period of time, unable to work because of illness? There have been many news stories about this: an employee approaches a medical practitioner, requests a medical certificate and, after a cursory examination (if at all) the medical practitioner allegedly issues a medical certificate or sick note, sometimes perhaps knowing full well that what is reflected on the medical certificate bears no resemblance to the truth whatsoever. Naturally, employers have become sceptical about medical certificates, suspecting that these could be obtained fraudulently with the intention to deceive.

What the BCEA says

Section 23 of the Basic Conditions of Employment Act (the BCEA) relates to the employee’s presenting proof of incapacity. In essence, it is up to the employee to prove his or her incapacity if he or she has been absent from work for more than two consecutive days (or more than two occasions during an eight-week period). Unless the employee provides a medical certificate as proof of incapacity upon request by the employer, the employer is not obliged to grant the employee paid sick leave — the implication being that the leave would, in the absence of a medical certificate, be regarded as unpaid leave.

The medical certificate must state that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury. The medical certificate must, in other words, confirm that the employee was, for the specific period, incapable of working due to illness or injury. This entails that there must be some indication as to the nature of the illness or injury — in most cases, a single word or a phrase hastily scribbled onto a pre-printed form by the medical practitioner.

Not just anyone can issue and sign a medical certificate — section 23(2) provides that the certificate must be signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. The implication of this section is that it is not only medical doctors who can issue and sign a medical certificate: any person who is certified to diagnose and treat and who is registered with a professional council can do so.

In respect of non-medical practitioners, the Traditional Health Practitioners Act 35 of 2004 is relevant. This Act establishes an interim Traditional Health Practitioners Council and section 21(1) of the Act provides that no person may practise as a traditional health practitioner unless he or she is registered in terms of the Act. Applications for registration to practice must apply to the registrar appointed in terms of Chapter 3 of the Traditional Health Practitioners Act. Once a traditional health practitioner is registered according to this Act, he or she can issue and sign medical certificates for the purposes of employment and in terms of section 23 of the BCEA.

Finally, section 23(3) of the BCEA relates to the situation where the employee lives on the employer’s premises. In this case, the employer may not withhold paying for sick leave unless the employer provides the employee with reasonable assistance to obtain a medical certificate.

The medical certificate as evidence

Employers often ask the question: just what is a medical certificate worth? Is it even worth the paper it’s written on? Given the media exposure of unscrupulous medical practitioners who issue medical certificates upon request without any physical examination, this may be a real concern, especially if the employer notices a pattern of medical certificates issued by certain practitioners.

In the first decision to consider, even in passing, the evidentiary value of a medical certificate, the Labour Appeal Court has broken new ground. In Mgobhozi v Naidoo NO & Others (2006) 15 LAC 1.18.1 . the employee (a junior clerk) was dismissed for various acts of dishonesty. His internal appeal was unsuccessful and he referred the matter to the CCMA. Some 31 weeks late, he sought to have the CCMA arbitration award set aside. This meant that he was required to apply for condonation.

In support of his condonation application, the employee presented his medical evidence. He approached a doctor who issued a medical certificate stating that the employee was being treated for, amongst others, depression, headaches, anxiety, and stress. The medical certificate also stated that he was treated with a potent cocktail of drugs for a period of 7 months. The medical certificate also stated, in conclusion, that the employee had become suicidal as a result of his symptoms. Another medical certificate, this time from a specialist psychiatrist, was also presented — the psychiatrist advised the employee to continue taking the medication, substituting some of the drugs and that monthly reviews of his conditions should be continued.

It is important to bear in mind, in relation to this case, that the medical certificates were being presented by the employee to indicate why he did not file his review application on time. Because of his illness, his argument went, and as supported by the medical reports, he was not in a position to bring the review application in time. In essence, the employee’s argument was that the review application was late because he was ill.

The Labour Court rejected this argument. One of the reasons for this was that neither doctor had expressed any opinion on the employee’s ability to manage his affairs. There was no way the Labour Court or the employee’s legal representative could draw the conclusion that the employee was, for the given time period, incapable of launching the review application. Nor could the employee say when and how he now again became competent to launch the review application. The Labour Court also rejected the employee’s case on the basis that it had no prospects of success on the merits.

Getting technical

Section 151 of the Labour Relations Act refers to the Labour Court as a court of law and equity. What does it mean that the Court has an “equitable” jurisdiction? Does it mean that different rules apply — for instance, that the rules relating to the admissibility of evidence are different in the Labour Court? Can the Labour Court be less strict in respect of evidence by permitting, for example, hearsay evidence?

This point is the main focus of the decision of the Labour Appeal Court in this case. The Labour Appeal Court’s basic point of departure was that the Labour Court is still a Court and it quoted, with approval, the following passages from 3M SA (Pty) Ltd v SACCAWU & others (2001) 10 LAC 1.1.2. .

“. In fact the description of the Labour Court and this Court [the Labour Appeal Court] as courts of equity does not add anything to the jurisdiction of these two courts. These two courts are superior Courts of law. The only fairness that they apply in dealing with matters which come before them is such fairness as they are specifically required to apply in specific sections of the Act in respect of specific types of disputes as well as such fairness as every Court of law is required to observe in terms of the rules of natural justice.

In fact the reference in the Act to the Labour Court and this Court as courts of equity (in addition to being courts of law) should be repealed because, while it adds nothing, it may cause unwarranted confusion.”

Having regard to section 151(2) . of the Labour Relations Act — which provides that the Labour Court has authority, inherent powers and standing equal to the High Court, the Labour Appeal Court concluded that the rules relating to the admissibility of evidence applies in the Labour Court (and in the Labour Appeal Court as well).

The two medical certificates submitted were not presented in affidavit form and they therefore constituted hearsay evidence: the authors of the documents were not present to confirm the contents of the documents and there could be no cross-examination of the documents. The question was whether the two medical certificates was admissible in the Labour Court in terms of the Law of Evidence Amendment Act 45 of 1988.

To cut the story short: the Labour Appeal Court confirmed that in order to convince the Labour Court that he was mentally or physically incapable of bringing the review proceedings, the evidence of the medical practitioners was necessary.

Where were the doctors?

The Law of Evidence Amendment Act requires a court to consider why the medical evidence was not provided in affidavit form. In the present case, the Court found that no reasons had been gives as to why affidavits made by the medical practitioners were not provided. It was, the Court remarked, not suggested that the doctors had passed away, that they had emigrated or that they were unavailable for some other reason.

Also worth noting is the fact that the Labour Appeal Court drew a negative inference from the fact that the medical practitioners concerned did not given evidence (affidavit or oral evidence):

“The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread – as I believe they are – it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.” (at [27])

Implications

This decision of the Labour Appeal Court may not have a direct and immediate impact on daily practice, and it does not serve as an immediate source of rules for employers seeking to challenge medical certificates. It does, however, give an indication that a medical certificate is not a holy document, and that it can (and should) be questioned. On its own, a medical certificate constitutes hearsay, and this may be pertinent for the purposes of arbitration proceedings or even internal disciplinary enquiries. The fact that there is no evidence supporting a medical certificate presented in arbitration proceedings may give rise to some questions or inferences (naturally, the strict rules relating to hearsay evidence, while they continue to apply in the Labour Court, do not apply with full force in the CCMA).

The employer is always in a position to question a medical certificate if it reasonably believes that there is reason to doubt the veracity of the medical certificate. Medical practitioners should be asked difficult and detailed questions as to the examination they did, the nature of the symptoms they identified and, if necessary, the prognosis. And it will always be interesting to see whether a medical practitioner is prepared to go on oath, either in person or on affidavit, in support of a medical certificate that may have been issued in haste.