Bogus doctor, whose fault, is it? A discussion on the Woolworths v Maseko judgement

The recent decision of the Labour Appeal Court (LAC) in Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29 (13 June 2024) raised discussions on the duties of the employer when presented with medical certificates/notices by employees to ascertain whether they are authentic or not.

The facts

Ms. Maseko was employed by Woolworths as the store specialist in its branch at Emalahleni. She was charged for allegedly being in breach of the company policies and procedures in submitting an irregular medical certificate to justify her absence on 26 June 2018. Woolworths suspected that the medical certificates she submitted were fake, that she was not ill when she was absent from work, and that she consulted with an unqualified or illegally practicing doctor. As a result, Ms. Maseko was dismissed. She referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The Arbitration proceedings

At the arbitration proceedings Woolworths led evidence that its Emalahleni branch received an email from its sister store in Highveld Mall warning them of the issuing of suspicious medical certificates/notices emanating from the practice of a local doctor.

With this warning in mind, an investigation was conducted on the medical certificates that were submitted by Ms Maseko who had consulted with the mentioned doctor, and who was booked off sick for four days.

The investigation revealed that Ms. Maseko had previously submitted a medical certificate from the same doctors’ medical practice and when questioned about it, Ms Maseko indicated that she consulted with a different doctor on the day albeit that the certificate was issued by the doctor mentioned in the highveld mall email.

Some of the Woolworths Emalahleni officials visited the medical practice in question and observed that, amongst other things, the consulting room was untidy and did not look like a normal consulting room as it contained gym equipment, there was a noticeable absence of filing cabinets, and the administrative personnel did not enquire on whether the doctor’s patients were paying cash or on medical aids.

The Woolworths officials also observed two ladies who requested to consult the doctor in question, one lady entered the consulting room for only a few minutes. Upon her return the lady was given a piece of paper. A gentleman was also observed appearing to negotiate for the purchase of a medical certificate, without a consult.

Ms. Maseko, in turn, argued that she was genuinely sick and consulted with the doctor in question. She called the doctor as a witness. The doctor testified that the person whom Ms Maseko consulted with on the previous occasion is not a doctor but his assistant, and that he allows her to issue pre-signed sick notes to patients after discussing the matter with him over the telephone in cases where he is not available. He confirmed that Ms. Maseko is part of the list of patients that he consulted with. Further, he testified that his practice as a doctor is not suspicious as he is registered with the Health Professions Council of South Africa (HPCSA) and other health professional bodies and possesses a long list of qualifications and accomplishments.

The arbitrator found that there was no evidence that Ms. Maseko was not ill, and the medical certificates she submitted to Woolworths were not irregular. As a result, her dismissal was found to be substantively unfair.

Proceedings at the Labour Court

Aggrieved by the arbitration award, Woolworths instituted a review application at the Labour Court. The Labour Court held that, the decision of the arbitrator was reasonable.

The Labour Appeal Court

Aggrieved by the decision of the Labour Court, Woolworths appealed the decision at the Labour Appeal Court, which upheld the decision of the Labour Court for the following reasons;-

1. Woolworths did not adduce evidence that Ms. Maseko was not ill or that she altered the medical certificates.;
2. The employer’s suspicion of the doctor which the court termed as “untoward” happenings at the doctors’ medical practice cannot be apportioned to the employee. In other words, an employee who may be genuinely sick and ends up consulting a questionable doctor may not be held liable for any irregularities stemming from the doctor’s practice especially when they do not know of such irregularities. The Court pronounced that it is not the employee’s responsibility to ascertain if the doctor they consult with is qualified, registered with the HPCSA or any other professional body

Lessons from the decision

When the employer has suspicion on the authenticity of the medical certificate/notice the onus is on the employer to prove that the medical certificates were altered by the employee and/or that the employee was not sick at the time they were booked off. Further, when the employer has suspicion on whether the doctor is qualified and or registered an investigation must be conducted on the doctor’s qualifications and registration in conjunction with the relevant professional bodies and law enforcement agencies where necessary. The fact that a doctor or doctors practice is believed to be acting irregularly or issuing sick notes to employees who are not genuinely ill do not invalidate all sick notes stemming from such practice and more is required from an employer when performing investigations into such instances.