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In brief

The pandemic of medical certificate abuse is rife in both the public and private sectors, with many labor court cases in South Africa having decided that forging a sick note constitutes serious misconduct. A recent case of sick leave abuse in South Africa that found its way to the Labor Appeal Court again confirmed that an employer’s zero-tolerance approach to dishonesty and fraud was correct and that employees who are dishonest in their timekeeping practices will likely have a bitter pill to swallow when their actions are revealed.


In depth

In a recent Labor Appeal Court (LAC) judgment, Sibanye Rustenburg Platinum Mine v. Association of Mineworkers and Construction Union obo Sono and Others handed down in May, the Court confirmed what most, if not everyone, accept as common sense: forging a sick note and providing it to your employer constitutes serious misconduct. It amounts to dishonesty and fraud and serves as a fair reason for dismissal.

The abuse of medical certificates appears to have resulted in a pandemic of its own. Employers and employees alike are able to recount tales of widespread abuse in the public and private sectors. The abuse of medical certificates seems infectious and is well documented in the law reports:

  • In 2001, in Legal Aid South Africa v. Ockert Jansen, the LAC confirmed that the Legal Aid Board fairly dismissed an employee who altered the dates on a medical certificate.
  • In 2020, in Woolworths v. CCMA and Others, the LAC held that Woolworths fairly dismissed an employee who had been booked off sick but then attended a rugby game on the same day.
  • In 2020, in G4S Secure Solutions SA (Pty) Ltd v. CCMA & Others, the Labour Court concluded that G4S Secure Solutions SA fairly dismissed an employee who had submitted a medical certificate that he knew was not genuine and that he obtained without seeing a medical practitioner.
  • In 2024, in South African Revenue Services v. CCMA and Others, the Labor Court upheld the dismissal of an employee from the South African Revenue Service who was booked off sick but then attended a protest march called by the Economic Freedom Fighters.

The May 2024 judgment considered evidence of employees who submitted fraudulent medical certificates and received pay for days on which they did not work. The certificates were purportedly issued by ‘Platinum Health’ but stamped at the RPM Hospital. An investigation revealed that the employees did not visit ‘Platinum Health’, as recorded in the certificates. The certificates were signed by the same unknown person without their initials or surname and did not reflect a practice number.

The Appeal Court concluded that the employees submitted the medical certificates with the single intention of deceiving their employer. The Court accepted the employer’s zero-tolerance approach to dishonesty and fraud. Most importantly, and self-evidently, the Court held that the fraud and dishonesty committed by the employees were serious and patently undermined the trust relationship between the employer and employees.

There can be little if any, doubt as to the negative impact of dishonesty in the workplace. This holds true for dishonest timekeeping practices as well. Where employees intentionally aim to deceive their employer about attending work, performing additional work in return for payment of overtime or extra time for work on Sundays or public holidays, fibbing about being sick while they are not, or submitting false medical certificates as proof of their inability to attend work, their employment is at risk. Employees who are dismissed for dishonesty related to purported sickness should expect no sympathy from the employment tribunal or Labor Court.

Author

Johan Botes heads Baker McKenzie’s Employment & Compensation Practice Group in Johannesburg. Johan is experienced in employment law and labor relations, focusing on South African and sub-Saharan African employment law and employee relations. He regularly advises multinational clients on industrial relations, employment negotiations, labor dispute resolution, change management, and organizational restructuring. His team manages multijurisdictional employment and employee relations projects on behalf of various multinational clients.

Author

JJ van der Walt is a senior associate in Baker McKenzie’s Employment & Compensation Practice Group in Johannesburg. He is experienced in employment law and investigations, acting for local and international clients across various industries.

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