legal advice banner

fake sick leave

The abuse of sick leave by employees is a pandemic that affects many employers.

Last week we had an inquiry; part of which read as follows:

“I employ through my small engineering business 16 employees, but I have a constant issue with sick leave. How can I deal with this issue fairly with my staff; and yet, at the same time, stop abuse by my employees; which is a real practical and financial problem for my business.”

Today; we will try to elaborate on this issue and cover the above topics.

The abuse of sick leave by employees is a pandemic that affects many employers.

Most employers have experience of employees staying away at the drop of a hat; and then submitting a very dubious medical certificate as evidence of their indisposition. Often employees feel that a medical certificate is irrefutable and an employer has no choice, but to accept the illness of the employee. Is this really the case though?

It is common knowledge that employees are entitled to sick leave from the day they commence employment. The Basic Conditions of Employment Act recognises this right and allows an employee to prove his/her incapacity to work by producing a medical certificate signed by a medical practitioner.

But what happens when an employee develops a pattern of sick leave or applies for annual leave which is declined; and then disappears for the same number of days on sick leave and produces a medical certificate upon his/her return? Is the employer compelled to accept this medical certificate?

Fortunately for employers, our courts have taken cognisance of the abuse by employees of sick leave and recognise that it would be unfair for an employer to be held hostage by an employee’s submission of a medical certificate, particularly given the ease with which the use of a medical certificate is abused.

In a recent labour case, the importance of proceeding with caution in respect of medical certificates was expressed.

It was held that the certificate was not conclusive proof of the inability to report for duty and that medical certificates need not be accepted at face value as they constitute hearsay evidence; that is to say; it is evidence submitted by a person (the employee) who is not the person who made the statement (ie. the medical practitioner); and thus do not stand as irrefutable proof of the employee’s condition.

This essentially means that an employer is entitled to query the validity of a medical certificate by requiring further supporting documentation from the medical practitioner in question or may in certain circumstances, reject the certificate and treat the period of absence as unpaid leave and even institute disciplinary action against the employee. The withholding of payment of wages from the employee is not in itself punishment; as it relates to the principle of “no work no pay”.

To institute disciplinary action, the employer must show that the submission of the medical certificate warrants disciplinary measures. For example, where an employee has developed a pattern of absence for which he submits certificates, this can be seen as a motivating factor for rejecting the certificate and taking disciplinary steps. Or, where the certificate lacks the following aspects, it could represent grounds for showing that it is a false certificate:

  1. If it fails to cover the period of absenteeism;
  2. If it appears to be an amended medical certificate;
  3. If a blank medical certificate was filled in by the employee in an attempt to misrepresent his/her actual health; or
  4. If the medical certificate was obtained from a person who is not a medical practitioner.

In order to prove guilt in a disciplinary hearing, the employer must be able to show that the certificate was submitted in an attempt to mislead the employer.

Where an employee is found guilty of knowingly submitting false medical certificates, this could constitute grounds for dismissal.

An employer should accordingly monitor and record periods of absence by employees to determine patterns in leave-taking which may point to abuse of sick leave.

It may be prudent where sick leave abuse appears to be a regular occurrence in an organisation, to obtain the advice and assistance of a labour expert to assist where necessary with the institution of the appropriate disciplinary action. This professional advice will no doubt assist the employer in proving its case against the employee.

If you have a query in this regard; please contact us.

Please also visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

Subscribe to our Legal Advice Blog

Follow our weekly Blogs:
To Subscribe to our Legal Advice blog is simple and easy. Just type your email address at the bottom and click GO

News Feed

Legal Advice Office

South Africa

Kandelaar Street, Vermont, Hermanus
Phone: +27 (028) 316 2832
Email: info@legaladviceoffice.co.za

Like what you see?

Close

Hit the buttons below to follow us, you won't regret it...

0
Shares