In some cases, the employer has to go to the additional expense of hiring temporary staff to fill the gap. In addition, the employer is required by section 22 of the Basic Conditions of Employment Act to pay a genuinely absent employee his full salary if he has paid sick leave due to him.
These costs tempt employers to try to get rid of sick employees. However, genuinely ill employees are well protected by law.
Schedule 8 of the Labour Relations Act (LRA) requires that employers must do all they can to avoid dismissing genuinely incapacitated employees. While every employer is expected to go the extra mile, the larger and stronger the employer is the more it will be expected to do to accommodate the employee.
However, what does the law allow where an absent employee is pretending to be ill? It often occurs that employees submit false medical certificates to their employers so as to hide the fact that they are well and to get paid sick leave.
This conduct is considered to be dishonest and can, depending on circumstances, merit dismissal. In order to implement a fair dismissal in such a case the employer would need to:
- Provide the accused employee with a full opportunity to defend himself against the charge of dishonesty; and
- Prove that the medical certificate that the employee submitted was falsified
- Prove that the employee himself either falsified the medical certificate or that the employee knew that it had been falsified when he submitted it
- In certain cases show that the employee, who submitted a genuine-looking medical certificate suspected of being false, was in fact not sick during the period in question.
Employers often attend to the first three of the above requirements but sometimes fail to address the last one. In the case of Woolworths vs Union obo Maseko (JA90/2022) the Labour Appeal Court found that the employee had submitted to the employer a medical certificate from a practitioner who was known to sell false medical certificates.
However, the Court found that the employer had failed to prove that the employee was not ill. The doctor was a registered practitioner and there was no proof that the specific medical certificate that he had issued to Maseko was false.
The Court therefore dismissed the employer’s appeal.
While the temptation to fire sick employees suspected of falsification of medical certificates is strong the managers responsible need to understand the legal provisions that they are required to comply with.
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