A common area of frustration within the workplace is the abuse of sick leave by employees. In order to prevent such abuse, an employer must consider the requirements for a valid medical certificate as prescribed by the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa as well as section 23 of the Basic Conditions of Employment Act.
Section 23 of the Basic Conditions of Employment Act deals with proof of incapacity and states:
“23. (1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and 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 second requirement is that the certificate must be issued by a medical practitioner. A medical practitioner is described in the definitions of the Act as:
‘‘. . . . a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental, and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);”
In terms of the above-mentioned Act, the following professionals are considered to be medical practitioners:
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Medical practitioners (Doctor with MBChB degree) that are registered with the Health Professions Council of South Africa.
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Dentists that are registered with the Health Professions Council of South Africa.
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Psychologists with a master’s degree in educational, counselling, or clinical psychology that are registered with the Health Professions Council of South Africa.
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Any other medical practitioner registered with the Health Professions Council of South Africa.
Further to the above, the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa can serve as a guideline for employers to determine the validity of a medical certificate.
Rule 15(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
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The name, address, and qualification of the practitioner.
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The name of the patient.
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The employment number of the patient (if applicable).
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The date and time of the examination.
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Whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds.
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A description of the illness, disorder, or malady, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medial practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work.
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Whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation.
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The exact period of recommended sick leave.
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The date of issuing of the certificate of illness; and
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A clear indication of the identity of the practitioner who issued the certificate which will be personally and originally signed by him or her next to his or her initials and surname in printed or block letters.
Thus, the medical note must show that the person was examined by the doctor or medical practitioner, found to be unfit for duty, and the note must be signed by a registered medical practitioner who is certified to diagnose and treat patients. Clinic notes signed by a nurse or any medical personnel who is not a medical practitioner but who can diagnose is not a valid sick note. Any certificate bearing an illegible signature and a rubber stamp is unacceptable, and in such cases can be questioned and treated as unpaid leave.
Traditional Healer Certificates
The case of Kieviets Kroon Country Estate (Pty) Ltd v Mmoledi & others [LAC] JA78/10) refers:
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Kieviets Kroon dismissed an employee for staying away from work. She had a medical certificate from a traditional healer which indicated that she had ‘premonitions of ancestors’. The employee had a vision and received a calling from her ancestors to attend a course on traditional healing for 3 weeks. She took unpaid leave for a week but was denied the further 2 weeks’ leave. She then proceeded to take the two weeks despite being instructed to return to work. The employee’s reason for non-attendance was that she truly believed that failure to attend the course could result in illness or death. The CCMA and the Labour Court said the dismissal was not justified. They said she had a justifiable reason for not being at work. Kieviets Kroon took the case on appeal to the Labour Appeal Court (LAC). The LAC said the Constitution recognises traditional beliefs and practices, so employers should also accept these beliefs. The court however specified that this was not a case of ill health, and the certificate from the traditional healer was not compliant with the requirements of the BCEA. Instead, this was a case of incapacity for other reasons, which is how the company should have addressed the matter.
With this being said, the Traditional Health Practitioners Act 35 of 2004 provided for the establishment of the Traditional Healers Council of South Africa allowing for Traditional Healers to register with the council which would then fall within the ambit of section 23(2) above.
The Traditional Health Practitioners Act indicated that:
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Traditional health practitioners must register with the Council which allows traditional health practitioners’ medical certificates to become proof of incapacity.
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After registration with the Traditional Health Practitioners Council of South Africa, the traditional healer must conform with the requirements for payment of sick leave just like any other medical practitioner.
Should an employee be booked off on sick leave and provide a valid medical certificate justifying his absence from work due to illness, the company is allowed to investigate the validity of the sick note. Employers should start by contacting the Health Professions Council of South Africa or the Allied Health Professions Council of South Africa and enquire whether the practice number is registered and confirm the details of the practitioner it is linked to. Certificates that are illegible or that have been altered may be rejected and if it can be proven that the employee altered such a certificate, it could lead to his or her dismissal.
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