By Michelle Naidoo / Partner / Mooney Ford Attorneys
and Diyara Ishwarlall / Candidate Attorney / Mooney Ford Attorneys
In Parts 1 and 2 of our sick leave series, we considered when an employer may require a medical certificate and what makes one valid.
But does producing a medical certificate automatically prove that an employee was genuinely incapacitated?
In arbitration proceedings, a medical certificate may constitute hearsay where its contents are disputed, and the employee may need to provide further evidence to substantiate the alleged incapacity.
- A Medical Certificate Is Not Necessarily Conclusive Evidence
A medical certificate is important evidence of an employee’s alleged incapacity. However, our courts have made it clear that merely producing a medical certificate does not necessarily constitute conclusive proof of incapacity.
The Labour Appeal Court dealt directly with the evidentiary status of medical certificates in Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC). The Court held that, where the probative value of a medical certificate depends on the medical practitioner who issued it, the certificate may constitute hearsay if the practitioner does not provide supporting evidence. Merely referring to the certificate in an employee’s own affidavit does not cure the hearsay problem; the medical practitioner may need to provide an affidavit or otherwise give evidence explaining the medical condition and conclusions recorded in the certificate.
The principle is important because a doctor’s certificate contains information from a person who is not necessarily giving evidence in the proceedings. An employee cannot automatically establish the truth of the medical conclusions recorded in the certificate simply by handing it to the arbitrator.
- Why Is the Medical Certificate Hearsay?
Consider an employee dismissed for absenteeism who, during arbitration, produces a medical certificate stating that they were medically unfit for work for two weeks.
An employee may ordinarily give evidence about matters within their own knowledge, such as consulting a medical practitioner, experiencing symptoms, or receiving a medical certificate. However, where the certificate is relied upon to establish the truth of the practitioner’s diagnosis, professional opinion or assessment of incapacity, the evidentiary basis for that conclusion becomes important. If the practitioner does not testify or provide supporting evidence, the certificate may constitute hearsay.
The medical practitioner is the person who examined the employee and formed the medical opinion recorded in the certificate. Where the employer disputes that evidence, the question becomes who can properly establish the basis for the doctor’s conclusion.
This is where the hearsay principle becomes relevant.
- What Have the Courts Said?
In Mgobhozi v Naidoo NO and Others, the Labour Appeal Court considered the admissibility of medical certificates under the Law of Evidence Amendment Act 45 of 1988.
The Court held that an employee’s reference to medical certificates does not, by itself, remove their hearsay character. It indicated that affidavits from the relevant medical practitioners may be necessary where the medical evidence is relied upon.
This principle has subsequently been applied by the Labour Court.
In NEHAWU obo Ndweni v Member of the Executive Council, Department of Social Development and Another [2017] ZALCJHB 90, the Labour Court considered an employee who relied on a medical certificate to justify prolonged absence. The Court expressed reservations about attaching weight to a certificate presented only after a substantial period of absence and which did not adequately explain the alleged incapacity. It emphasised that prolonged absenteeism cannot necessarily be justified merely by producing a copy of a medical certificate and indicated that further information from the medical practitioner may be required.
Similarly, in Inxuba Yethemba Municipality v South African Local Government Bargaining Council and Others [2022] ZALCPE 1, the Labour Court considered the evidentiary value of a medical certificate produced during arbitration proceedings in support of a postponement. The Court held that an unattested medical certificate does not automatically justify a postponement. Where the certificate and circumstances surrounding its production are contentious, the arbitrator may consider both its contents and how it was obtained. Relying on Mgobhozi, the Court held that where the relevant facts are disputed, an affidavit from the medical practitioner explaining the ailment, extent of incapacity, treatment and prognosis may be required. The Court further indicated that, ordinarily, where incapacity to participate in arbitration is disputed, a postponement application should be supported by substantive medical evidence.
More recently, in Epibiz (Pty) Ltd v CCMA and Others [2023] ZALCJHB 207, the Labour Court considered an employee who relied on a series of medical certificates to explain prolonged absence. The employee was unable to explain the illness recorded on the certificates, while the treating doctor neither provided an affidavit nor gave oral evidence at the arbitration. Relying on Mgobhozi and Old Mutual, the Court held that the certificates constituted hearsay in those circumstances. The Court also found that the employee’s supporting clinical social worker reports were hearsay without supporting evidence from their author. The arbitration award was consequently reviewed and set aside, and the employee’s dismissal was found to be procedurally and substantively fair.
- Does the Doctor Always Have to Testify?
The case law should not be understood as establishing an absolute rule that every medical certificate requires the issuing medical practitioner to attend an arbitration and testify.
Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides circumstances in which hearsay evidence may be admitted, including where the parties agree to its admission, where the person upon whose credibility the probative value depends gives evidence, or where admission is in the interests of justice.
The question is therefore one of admissibility, relevance and probative value in the circumstances of each case.
However, where an employer genuinely disputes the employee’s incapacity and the employee relies principally on the medical certificate to establish the truth of the medical conclusions contained in it, supporting evidence from the medical practitioner may be required. Depending on the circumstances, this may take the form of oral evidence, an affidavit or other properly admissible medical evidence.
The absence of such evidence may affect the evidentiary weight attached to the certificate.
- What If the Employer Challenges the Certificate?
An employer is entitled to challenge evidence of incapacity where there are legitimate grounds for doing so. This does not mean that an employer may simply reject a medical certificate because it disagrees with the employee’s absence. The employer should identify the basis for the challenge.
For example, concerns may arise where:
- the authenticity of the certificate is disputed;
- the certificate contains inconsistencies or unexplained alterations;
- the certificate is vague regarding the period of incapacity;
- the certificate appears to have been issued without a proper examination;
- the employee’s conduct appears inconsistent with the alleged incapacity; or
- other evidence contradicts the employee’s version.
In Woolworths (Pty) Ltd v CCMA and Others [2024] ZALAC 29, the Labour Appeal Court considered an employee dismissed after her employer alleged that she had submitted an irregular medical certificate. The employer relied, among other things, on evidence concerning allegedly improper practices at the medical practice that issued the certificate. The Court held that evidence of irregularities at the practice, without more, did not establish that the employee had knowingly obtained or used an irregular certificate. There was also no evidence that she had altered the certificate, misled the doctor into booking her off, or was not genuinely ill. Significantly, the doctor testified at the arbitration and confirmed that he had examined the employee and issued the certificate. The Court therefore found that the employer had not established the alleged misconduct on the evidence.
This illustrates an important distinction: challenging a medical certificate is not the same as proving that the employee was dishonest.
- A Disputed Certificate May Require Supporting Evidence
Where an employee relies on a medical certificate to establish incapacity and the medical evidence is genuinely disputed, the employee cannot necessarily rely on the certificate alone to establish the truth of the medical conclusions recorded in it.
In Epibiz, the employee was unable to explain the illness recorded on the certificates, while the treating doctor neither provided an affidavit nor gave oral evidence. The Court considered this significant in assessing the evidence before the arbitrator.
The practical lesson is that an employee who relies on a medical certificate in arbitration should be prepared, where its contents or the underlying incapacity are genuinely disputed, to substantiate the medical basis for the absence through admissible evidence.
- What Does This Mean for Employers?
Employers should not automatically assume that a medical certificate ends an enquiry into absenteeism.
Where there are legitimate concerns regarding an employee’s absence, the employer should properly investigate those concerns and ensure that any allegations of misconduct are supported by evidence.
At the same time, employers should avoid treating every questionable certificate as fraudulent.
The Woolworths judgment demonstrates the importance of establishing an employee’s knowledge and conduct before concluding that the employee has committed misconduct involving a medical certificate.
- What Does This Mean for Employees?
Employees should understand that producing a medical certificate is not necessarily the end of the evidentiary enquiry. Where an employer genuinely disputes the employee’s incapacity, particularly where the certificate is the principal evidence of the medical basis for the absence, the employee may need to provide supporting evidence. Depending on the circumstances, this could include evidence from the treating medical practitioner, an affidavit from the practitioner, or other admissible medical evidence.
Key Takeaway
A medical certificate is important evidence in a sick-leave dispute, but its mere production does not necessarily establish the truth of every medical conclusion contained in it.
Where the medical evidence is genuinely disputed, the certificate may be subject to the hearsay rule and its evidentiary weight may depend on whether the issuing medical practitioner provides supporting evidence. Depending on the circumstances, that evidence may take the form of oral testimony, an affidavit or other admissible medical evidence.
The case law therefore supports a practical principle: a medical certificate may explain an absence, but where the medical basis for that absence is genuinely disputed, the employee may need to substantiate the underlying incapacity through admissible evidence.
