An employee abusing sick leave to avoid/prolong disciplinary action – Does the employer have any remedy?

The situation commonly presents itself when an employee has committed an act of misconduct and is subjected to disciplinary action by the employer. It has become common that employees, more often than not, when charged with serious offences, then request numerous postponements of the proceedings based on a submission that they are sick and cannot attend the proceedings based on a medical certificate obtained from their doctor.

The issue then comes in when the employer cannot finalise the disciplinary action due to various postponements based on said medical certificates, and the question comes of whether there is any remedy for the employer in these instances. While due regard is down to the fact that employees who are medically unfit to attend these proceedings cannot be unfairly prejudiced, there is a fine line in balancing the employer’s and employee’s interest in such instances while also considering the facts and merits of each specific case.

How does this occur?

The general principle is that when employees provide the company with a medical certificate declaring them unfit to work, they are rightfully entitled to remain home. However, as stated above, some employees see a “loophole” when being charged with misconduct in obtaining and presenting doctor’s notes each time the company wants to proceed with the disciplinary inquiry.

This direly impacts the employer as the matter is unreasonably prolonged. The workplace is disrupted due to the employee not being present at work, and the employer cannot finalise the matter and discipline the employee in accordance with the company disciplinary code and precedent. 

As stated above, this delay tactic is applied by employees facing serious charges that may lead to dismissal and paid suspension. In addition to the financial implications of this on the employer, it places the company at risk of continuing in the employee’s absence to get the matter finalised, where the employer might then render themselves liable for procedural unfairness.

What options do employers have?

The employer is, however, not without remedy. The employer may contact the medical practitioner involved and confirm the sick note’s validity. If the medical practitioner in question did, in fact, issue the sick note, the employer might furthermore enquire that the medical practitioner is called as a witness during the disciplinary proceedings as the employer may argue that the medical certificate amounts to hearsay.

Case Study

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 the Courts should be especially vigilant to prevent abuse.

Should the medical practitioner not testify at the disciplinary proceedings, the chairperson may rule that the matter proceed because the medical certificate is rejected based on it amounting to hearsay evidence. The proceedings will be conducted in the absence of the accused should he/she elect not to attend and may then be finalised.

If the medical practitioner does testify during the proceedings, the employer has the opportunity to enquire about the actual medical state of the employee, whether or not it’s permanent and whether or not the medical practitioner believes that the employee would be able to answer to the charges. The employer is not expecting the employee to render his/her services at the company but merely to participate in the proceedings.

Based on the testimony of the medical practitioner, the chairperson may then rule that the matter proceeds either in the absence of the employee, the employee and a representative or in writing or that the employee is subjected to an incapacity inquiry due to ill health.

Please contact our offices at 0861 737 263 if you have any queries or require assistance regarding such matters and implementing the necessary disciplinary actions.