PP Smit Attorneys

The matter of a medical certificate has raised questions for quite some time. Many employers believe that if their employees provide a medical certificate for their absence from work they are obliged to pay them for the day(s) missed. Similarly, employees believe that should they stay away from work and provide a medical certificate, all should be forgiven. While this is partly true, our Labour Courts have emphasised that employers are under no obligation to merely accept an employee’s medical certificate at face value. What then, as an employee, are your next steps, and on what basis, as an employer, are you entitled to do this?

The abuse of sick leave has become widespread within the South African workplace. Employees tend to conveniently fall ill at the drop of a hat and easily obtain confirmatory medical certificates, while others pay doctors for a medical certificate exaggerating their symptoms. Employers lose millions, if not billions, of money as a result of sick leave abuse, while employees believe that merely providing a medical certificate is irrefutable proof of their incapacity. Is this belief well-founded?

According to Section 23 of the Basic Conditions of Employment Act (referred to as “the BCEA”), an employer is not obligated to pay an employee under Section 22 (the sick leave provision) if the employee is absent from work for more than two consecutive days and fails to provide a medical certificate upon the employer’s request, confirming their inability to work. At first glance, it may seem that the law leans in favour of the employee by simply presenting a medical certificate, making it a final matter.

However, it is important to discuss what qualifies as a “valid” medical certificate. Section 23(2) of the BCEA provides guidance concerning this. A valid medical certificate must be issued and signed by a medical practitioner or a certified person authorised to diagnose and treat patients, registered with a professional council established by an Act of Parliament. For a medical certificate to be considered valid, it must fulfil two requirements: firstly, it must state that the employee was unable to carry out their duties due to illness or injury, and secondly, it must be based on the professional opinion of the medical practitioner. Certificates that simply state “I was informed by the patient” are not considered valid since the practitioner did not provide a diagnosis or their professional opinion. Such certificates are mere formalities. This is just one avenue through which an employer can question the validity of a medical certificate.

Another point is when an employer reasonably suspects that his employees are absent from work without any authorisation and uses sick leave and a medical certificate as a tool to still get paid and avoid any consequences. This was the case in NUMSA and Others v Kaefer Energy Projects(1). In this case, 43-44 employees were absent from work to take part in an unprotected strike. Upon returning, they submitted medical certificates to excuse their absence. However, Kaefer, the employer, charged and dismissed them for unauthorised absence and sabotage. Upon challenging the decision of the employer, NUMSA argued that they were under no obligation to prove the truth and accuracy of the contents of the certificate and that a mere production constituted a valid reason for being absent from work. The court, however, has established that a medical certificate is considered hearsay evidence and would require additional support in the form of an affidavit from the medical practitioner, affirming the information stated in the certificate. Should this not be done, our courts have held:

“The absence of any such explanation is viewed in a most serious light. The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread – as I believe they are-it strengthens the need for courts [and employers] to be especially vigilant against their misuse.”(2)

Therefore, the employer is under no obligation to accept the submission of a medical certificate. However, should he or she challenge the validity thereof, it must be done based on reasonable suspicion of abuse, as in the case of Keafer. In such situations, the employee should not be abusing their sick leave, and if questioned, get their doctor to submit an affidavit confirming the contents therein.

It is essential to keep in mind that when an employee takes one or two days off due to illness, a medical certificate is not necessary. However, those days still count as sick leave and will be deducted from their overall sick leave entitlements.

References:

  1. (2022) 43 ILJ 181 (LC) (7 September 2021).
  2. Mgobhozi v Naidoo NO & Others (2006) 27 ILJ 786 (LAC) at para [27].

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.

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Carla Cloete

Director | Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the PP Smit team as a professional assistant.

Carien Hamman

Attorney & Notary | LLB

Carien grew up and matriculated in the picturesque town of Ceres, whereafter she furthered her studies at the University of Stellenbosch and obtained her LLB degree in 2015. She completed her articles at VanderSpuy Cape Town in 2017 and stayed on as an associate litigant after being admitted as an attorney during early 2018. Carien loves the countryside and thus ventured back to Ceres where she joined Joubert Van Vuuren Inc. for a year. However, when she was presented with the opportunity to enjoy both the country- and the seaside, she couldn’t resist and joined PP Smit Attorneys at the beginning of 2022 as an avid litigator. When she is not at the office, Carien enjoys long walks, wine tasting, and exploring the area with her family and friends.

Harmann Potgieter

Attorney | LLB | NQF 7

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with PP Smit Attorneys as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys, and not too long after that, he grabbed the opportunity to work at PP Smit Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director of the firm, where he practices in the Litigation department. Jandré additionally joined the company of PP Smit Attorneys during the same year. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity he joined the company of PP Smit Attorneys during 2006. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he moved to Vredenburg and joined Swemmer & Levin, where after he joined the company of PP Smit Attorneys during 2006.. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking.

Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. In 2004, he also joined the company of PP Smit Attorneys.

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners.