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Monday, November 1, 2010
Defying the doctor

Our Labour Laws provide that a medical certificate used by an employee to claim sick-leave must be signed by a medical practitioner who is certified to diagnose and treat patients and is registered with a professional council. But what happens when an employer wants to challenge the validity of a medical certificate or refuses to accept it, as in a recent case involving Defy Appliances (Pty) Ltd?

Richard Pemberton, a Director in the Labour Department at Garlicke & Bousfield Inc, mentions a case concerning Defy that became suspicious about the medical certificates issued to its employees by certain medical practitioners and its investigations revealed that some of these doctors were issuing them, often through their receptionists, for a fixed fee without conducting any examination of the ‘patient’.
“Defy ‘black-listed’ these practitioners and advised its staff that it would not accept certificates from them,” he explains. “When certain members of staff subsequently presented certificates from the doctors concerned in support of their sick leave, Defy refused to accept them. The Industry Bargaining Council, at the instance of the employees’ union, NUMSA, challenged the company and the dispute ended up in an arbitration in the CCMA.”
The Commissioner, in his arbitration award, found in favour of Defy, basing his finding on the rules of evidence. Without supporting evidence (ie an affidavit by the medical practitioner or his oral testimony on oath), medical certificates are hearsay evidence which, in terms of section 3(1)(c) of the Law of Evidence Amendment Act 1988, a court has a discretion to permit or to exclude. The Commissioner also referred to Rule 15(1) of the Ethical Professional Rules of the Medical and Dental Professions’ Board of the Health Council of South Africa, which requires a medical practitioner to provide extensive information in a medical certificate. The Commissioner accordingly gave NUMSA and the employees concerned an opportunity to obtain affidavits from the suspect doctor to support the certificate, but none were produced. He then rejected the unsupported medical certificates and found that the employees had failed to prove their entitlement to sick leave.
Says Pemberton, “What is the effect, in practice, of this finding? Although a medical certificate is hearsay evidence only, it nonetheless constitutes ‘face value’ evidence that the employee was ill and can be accepted by the employer. Where, however, an employer has reasonable grounds for believing that the certificate had been improperly issued, it is entitled to require that the employee substantiate the certificate by affidavit or oral evidence from the doctor concerned. Regrettably for employees, medical practitioners who issue bogus certificates are, not surprisingly, usually reluctant to furnish the required evidence in any form.”

Copyright © Insurance Times and Investments® Vol:23.11 1st November, 2010
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