An employee was suspended and attended a disciplinary enquiry for six acts of alleged misconduct. After her acquittal, she was requested to return to work, which she failed to do. She, instead, elected to obtain various medical certificates and social worker reports which declared her unfit for duty. No medical certificate or report mentioned the reasons for her ailment. After a lengthy period of being absent as a result of an illness not identified in the medical certificates, she was dismissed by the employer. The CCMA found in favour of the employee and the employer applied for the award to be set aside. The Labour Court found in favour of the employer and held that her dismissal was substantively and procedurally fair as the arbitrator had failed to consider material evidence placed before him. 

Epibiz (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2023] 11 BLLR 1188 (LC)

Case summary

The employer, Epibiz (Pty) Ltd, brought a review application in terms of section 145 of the Labour Relations Act (“LRA”). The CCMA arbitrator had found inter alia that the employer did not follow the procedure set out in the Code of Good Practice: Dismissal dealing with incapacity due to ill health or injury. The arbitrator further found that based on submissions of medical certificates and reports by the clinical social worker, the employer knew the condition of the employee, and ought to have been prudent and considerate in approaching her situation. The arbitrator also found that the employer “was hasty when it decided to terminate the employment relationship.”  Consequently, the arbitrator deemed the employee’s dismissal procedurally and substantively unfair, and awarded compensation. The employer argued that the arbitration award was not one a reasonable arbitrator would make having regard to the evidence placed before the arbitrator.

Mrs Jordaan, the employee, was employed as the employer’s credit manager for 27 years. She was suspended on full pay in 2016 and found not guilty on six charges of misconduct. Following her acquittal, she was requested in writing by the employer to return to work on 24 August 2016. Mrs Jordaan did not return to work, but presented a medical certificate by a doctor confirming that she was unfit for duty until the end of that month. The doctor, however, did not specify the nature of her illness.

On 29 August 2016, a day before the expiry of the previous medical certificate, Mrs Jordaan obtained another medical certificate from the same medical doctor. The second medical certificate had similar wording, but the dates differed. She subsequently obtained two more certificates, each successively booking her off until the end of November 2016. During this period, Mrs Jordaan also obtained two reports from a social worker, Ms Mitchell, who held that Mrs Jordaan had been traumatised by her suspension and the subsequent disciplinary proceedings, and stated that the employee “will find it difficult, if not impossible, to return to her workplace without intensive therapeutic and pharmacological support”.

After three months, the employer wrote to the employee’s consultant, inviting her to make written representations as to why her employment should not be terminated on the ground of illness or because she had reached retirement age, or both. On 28 November 2016, the employer addressed a letter to Mrs Jordaan terminating her employment premised on the consideration of Ms Mitchell’s reports and the fact that the employee was declared medically unfit to continue to work. The said letter also indicated that due to the nature of Mrs Jordaan’s work, performing it from home would not be possible.

During the period of Mrs Jordaan’s absence from work, she requested the employer to assist her in making a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (“COIDA”) as she was allegedly “injured” on duty. The employer refused as it would have been a fraudulent claim. When that failed, the employee asked that she be retrenched, but the employer refused to retrench her as it sought clarity on the employee’s medical condition called “consultation”. Another request from the employee was that a claim should be lodged with the Workmen’s Compensation Fund. That request was rejected too, as the employer did not want to lodge a fraudulent claim for the benefit of the employee.

The Labour Court held that the arbitrator had “spectacularly”  misconstrued the guidelines set out in the Code of Good Practice: Dismissal dealing with incapacity due to ill health or injury, which made no reference to the ailments the employee claimed to be suffering from. The employee and her representatives had also frustrated the employer’s efforts to ascertain the true reasons for the employee’s prolonged absence.

The employee was unwilling or unable to explain the nature of her illness and neither the doctor who had diagnosed her illness as “consultation” nor the social workers testified. This rendered the medical certificate and the reports mere hearsay. From the record, it was apparent that the employee herself could not explain her illness as recorded in the medical certificates that she obtained from her medical doctor. The treating doctor did not depose to an affidavit to substantiate the nature of the illness recorded in the medical certificate. Furthermore, the treating doctor was not called by the employee to give oral evidence in the arbitration proceedings. The Court held that it is trite law that a medical certificate or a sick note from a treating medical doctor remains hearsay evidence if the said certificate is not accompanied by an affidavit from the said doctor.

The Court also held that the arbitrator failed to consider material evidence placed before him. The arbitrator failed to take into account that the employee conceded under cross-examination that it was not possible to perform her official duties from home as she constantly had to be in contact with her colleagues and various clients as the employer’s credit manager. The concession of this material fact clearly indicates that with the employee’s prolonged absence from work, the employer had no alternative but to terminate her employment premised on the nature of her illness called “consultation”.

The Court added that the issuing of medical certificates should be subjected to legislation to avoid them being used to facilitate malingering. Medical practitioners should also be wary of becoming accomplices to fraudulent attempts to deceive employers.

The Court, therefore, held that the decision of the arbitrator was not one a reasonable decision-maker ought to have reached having properly considered the evidence presented to him. The award was reviewed and set aside as Mrs Jordaan’s dismissal was ruled procedurally and substantively fair.

Written by Labour Guide