ARTICLE OF INTEREST - Employers have every right to query sick notes

This is an interesting article that appeared in the Sunday Times Career section on 22nd June 2008 (page 2).

Medical certificates - the question arises time and time again. Employers believe that, if the employee produces a medical certificate as justification for a period of abscence, the employer is bound to accept it and must pay the employee for the period of abscence. Employee's also believe there is nothing the employer can do, except to treat the absence as paid sick leave. This leads to abuse of the system.

Medical certificates contitute hearsay evidence. In a 2006 court judgement handed down by the Labour Appeal Court (Mgobhozi v Naidoo NO & Others 3 BLLR 242 LAC), the matter was addressed.

After his dismissal for misconduct, the employee referred a dispute of unfair dismissal to the CCMA. The commissioner ruled that the dismissal was fair.

The employee submitted a review application to the Labour Court 31 weeks outside of the time limit. He gave the reason for his late referral by claiming that he had been sufferring from stress and depression, and he attached two medical certificates to his application in support of this claim.

The employer opposed this application, claiming the employee had exaggerated his illness. The Labour Court dismissed the application for condonation as well as dismissing the review application.

Turning to the review application, the court noted that such applications must be accompanied by affidavits setting out the evidence that would have been led at a trial.

The Evidence Amendment Act 45 of 1998 makes it clear that hearsay evidence includes evidence given in writing by a person, other than the deponent to an affidavit.

This means that a medical certificate, which is submitted by the employee, is evidence given in writing by another person - and therefore constitutes hearsay evidence. Hearsay evidence is not admissible unless it is supported by other direct evidence.

The court stated that the abscence of affidavits from the doctors led to the inference that they were not prepared to defend the certificates under oath. Employers do not have to accept medical certificates - such a document comprises hearsay evidence and the employer is fully entitled to query it, or, depending on circumstances, to simply reject it and take disciplinary action against the employee, or simply treat the period of abscence as unpaid leave - written by Derek Jackson. Article sourced from http://www.labourguide.co.za/

This article is sourced as an article of interest and does not necessary support the policies of Manpower SA (Pty)Ltd. It is posted as an article of education and information.