What should an employer do when an employee submits an irregular sick note and pleads ignorance when confronted? In a previous article we discussed a Labour Appeal Court (LAC) judgement, where an employer was ordered to reinstate an employee dismissed for submitting a medical certificate that the employer considered to be irregular. While it may seem surprising that employees can get away with such actions, the situation is more nuanced than it appears.
The Harmony Gold Case
In the CCMA matter of NUMSA obo Tlhone v Harmony Gold Mining Company Ltd (2025), the employee, an engineering assistant, was dismissed for presenting a fraudulent sick note after a single day’s absence. She claimed that when she visited the doctor, she was given over-the-counter flu medication and a sick note by the receptionist. According to the employee, she believed that the sick note was legitimate and submitted it to her employer without suspecting any irregularities.
However, after detecting irregularities in the certificate, the company contacted the doctor, who denied issuing it and confirmed the inconsistencies. The employee had previously submitted legitimate sick notes, proving she was aware of the company’s rules on medical certificates. Additionally, she was an unreliable witness, struggling to recall many details of the alleged doctor’s visit.
Ultimately, the Commissioner found the employee dishonest, which warranted her dismissal.
The Woolworths Case
The outcome in the case of Woolworths v Maseko & Others (2024) LAC did not go the employer’s way.
Evidence surfaced that suspicious sick notes were being issued at a particular medical practice, with allegations that certificates were being sold. It was also revealed that the doctor in question allowed his assistant to issue sick notes, which the doctor in question later alleged was common practice.
The employee was charged with being in breach of company policies and procedures in that she submitted an irregular medical certificate on 26 June 2018 to justify her absence from work. She was also accused of being dishonest when asked about her previous consultation with the doctor in March 2016, when a medical certificate was issued by the doctor’s assistant. She was found guilty and dismissed.
In the CCMA hearing the employee testified that “when she submitted both sick notes, she did not suspect anything amiss about them and submitted them innocently in line with the [employer’s] policies”. The doctor testified that he had personally seen the employee on 26 June 2018 and had booked her off based on her condition at the time.
The court ruled that the employee had been unfairly dismissed.
What Went Wrong for the Employer in the Woolworths Case?
Although the Commissioner in Harmony Gold referenced the Woolworths case, she pointed out that there were certain factual differences that distinguish it from Harmony Gold. The most important difference is that in Woolworths the doctor confirmed issuing the certificate. While the practices at his consulting rooms were in violation of HPCSA (Health Professions Council of South Africa) rules and guidelines, the employer failed to prove the employee had acted dishonestly.
This highlights a crucial legal principle: knowledge of wrongdoing is key – employers must demonstrate that an employee knowingly submitted an irregular medical certificate.
The Challenge of Ignorance
A recurring issue is employees claiming ignorance. The Labour Appeal Court in Woolworths noted that many workers lack the means to determine whether a medical professional is qualified, unqualified, or operating illegally. Nor would they necessarily know the technical requirements for a valid medical certificate. This presents a challenge for employers.
The Solution: Clear Rules and Education
The answer lies in establishing clear workplace rules and policies. Employers should educate employees on when medical certificates are required and what constitutes a valid certificate. Further guidance is available in our previous article discussing the Woolworths case – see https://labourwise.co.za/labour-articles/dismissing-employees-for-irregular-sick-notes
Jan Truter for www.labourwise.co.za
How do you prepare for a case where an employee handed in a fraudulent sick note and when confronted he claimed the ‘doctor’ came to his house, examined him, gave him medicine and a sick note all for R400. He is claiming he did not know that the person was not a doctor. I know I can ask the number he called and so on, but how do I prove dishonesty so that he can not relay on ignorance.
“Fraudulent” implies dishonesty, which is not necessarily the case if a certificate is “invalid” or irregular”. However, if – based on your investigations – you are of the view that the employee was dishonest, you can proceed with a disciplinary hearing where evidence is led, the employee given an opportunity to state his case and where is version is challenged through probing questions. The chairperson can decide whether he is guilty of dishonesty on a balance of probabilities.