How to deal with suspected fraudulent medical certificates

Jodi-Leigh Erasmus says medical certificates constitute hearsay evidence and can be queried by employers.

By Jodi-Leigh Erasmus, a dispute resolution official at the Consolidated Employers Organisation in Port Elizabeth.

Most employers believe that if the employee produces a medical certificate as justification for a period of absence that the employer is bound to accept it and is bound to pay the employee for the period of absence.

However, where the employer suspects foul play, the employer is entitled to contact the employee’s medical practitioner to enquire whether the practitioner did, in fact, issue a certificate and whether the practitioner consulted with the employee.

The employer can further request that the medical practitioner provide him with further proof to substantiate the medical certificate.

In Mgobhozi v Naidoo NO & others [2006] 3 BLLR 242 (LAC), the Labour Appeal court confirmed that medical certificates without supporting evidence from doctors might amount to hearsay and courts should be especially vigilant to prevent abuse.

The Evidence Amendment Act 45 of 1998 makes it clear that hearsay evidence includes evidence given in writing by a person other than the deponent to an affidavit. This means that a medical certificate that is submitted by the employee, is evidence given in writing by another person and therefore constitutes hearsay evidence.

Hearsay evidence is not admissible unless it is supported by other direct evidence. This means that should an employee wish to rely on a medical certificate as evidence during a disciplinary hearing or as proof of the absence, the medical certificate will remain hearsay evidence unless the medical practitioner files a supplementary affidavit in support of the medical certificate.

In the Mgobhozi case, the court stated that the absence of supporting affidavits from doctors led to an inference that the doctors were not prepared to defend the certificate under oath.

The issue of doctor-patient confidentiality does not arise where the employee depends on the evidence presented by the medical practitioner as the employee is entitled to waive doctor-patient confidentiality to prove that there were medical reasons for the absence.

Employers do not have to accept medical certificates because such documents comprise hearsay evidence. The employer is therefore entitled to query it or, depending on the circumstances, reject it and take disciplinary action against the employee or treat the period of absence as unpaid leave.