2 January 2025
Employee absenteeism due to illness is a common workplace issue. However, employers’ concerns about employees being dishonest about their sick leave have grown exponentially in recent years, as it has become increasingly easier for employees to obtain fraudulent sick notes. Consequently, employers are tasked with balancing their respect of an employee’s privacy with the protection of the integrity of their policies and procedures for these situations. The case of Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29 highlights the evidence required for an employer to successfully dismiss an employee accused of submitting a fraudulent sick note. The case is significant because it emphasizes the importance of a robust investigation and sufficient evidence to substantiate claims of dishonesty and policy violations. Specifically, this case demonstrates the interplay between the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA) in handling dismissal for fraudulent sick leave.
Case Study
On 26 June 2018, Ms. Lorain Maseko, a store specialist employed by Woolworths in Emalahleni, submitted a sick note signed by Dr. Frempong, which excused her from work for four days. This submission was scrutinized after a circular was sent to nearby stores warning of suspicious medical certificates issued by Dr. Frempong. Notably, Ms. Maseko's file contained a previous sick note from March 2016, which was also signed by Dr. Frempong. However, Maseko denied that Dr. Frempong had issued the earlier certificate, claiming it was written by “Dr. Zanele,” a different doctor. Subsequent investigations revealed that Dr. Zanele was a nursing assistant working for Dr. Frempong. Investigators from Woolworths visited Dr.Frempong's practice and gathered evidence that confirmed their suspicion that Dr. Frempong was involved in issuing fraudulent medical certificates. Maseko was charged with submitting an irregular medical certificate in June 2018 and lying about the March 2016 sick note. She was dismissed after being found guilty of breaching company policies and being dishonest.
Legal Principles: Substantiating Dismissal for Fraudulent Sick Notes
Dismissals for fraud, dishonesty, or breach of company policy must be based on a fair and objective investigation. The Woolworths case is a key example of how employers should deal with suspected fraudulent sick notes and the evidence required to substantiate the dismissal.
1. Evidence of Fraudulent Behaviour
In cases of suspected fraudulent sick leave, employers must establish clear evidence of misconduct. This may include:
• Documentary evidence: In Woolworths v Maseko, the medical certificate itself was the primary piece of evidence. The employer had access to an internal circular warning about suspicious certificates from Dr. Frempong, which played a crucial role in triggering further investigation.
• Corroborative investigations: Woolworths conducted an independent investigation by visiting Dr. Frempong's practice and gathering physical evidence. These efforts demonstrated that Dr. Frempong was allegedly involved in issuing fraudulent medical certificates.
• Witness testimony: The testimony of the investigating managers was integral in proving the irregularities surrounding Dr. Frempong’s practice. The fact that Ms. Maseko's previous sick note had been signed by Dr. Frempong, despite her claim that it was issued by another doctor, raised suspicions about her honesty.
2. Honesty and Integrity in the Disciplinary Process
Ms. Maseko's dishonesty regarding her earlier consultation with Dr. Frempong was critical in justifying her dismissal. The employer must demonstrate that the employee’s actions undermine the trust relationship. In this case, Maseko’s false claims about the March 2016 sick note further reinforced the perception of dishonesty, which constituted grounds for dismissal under the Labour Relations Act (LRA). Section 188 of the LRA stipulates that a dismissal must be both substantively and procedurally fair, with dishonesty being a potentially justifiable ground for dismissal, particularly where the relationship of trust between employer and employee is undermined.
3. Breach of Company Policies and Procedures
Woolworths argued that Ms. Maseko had violated company policy by submitting a fraudulent medical certificate. The Basic Conditions of Employment Act (BCEA) provides a framework for regulating employee sick leave, but individual company policies and procedures—often informed by the BCEA—govern specific expectations. In this case, Woolworths had the responsibility to ensure that the policies were communicated clearly, and the evidence suggested that Ms. Maseko knew or should have known about the fraudulent nature of the certificate.
4. The Role of the Labour Appeal Court
The Labour Appeal Court upheld the dismissal of Ms. Maseko, ruling that the dismissal was substantively and procedurally fair. This case exemplifies the employer’s duty to conduct a thorough and impartial investigation into the allegations of misconduct. The Court also affirmed the employer’s right to dismiss an employee for dishonesty and submitting a fraudulent medical certificate when the evidence supports such a conclusion, in line with the provisions of both the BCEA and the LRA.
5. Key Lessons for Employers
The Woolworths case offers valuable lessons for employers dealing with fraudulent sick notes:
• Investigations: Employers must conduct a thorough and unbiased investigation before dismissing an employee. This includes verifying the authenticity of medical certificates and gathering corroborative evidence to substantiate allegations of fraud.
• Consistency: Employers should ensure that disciplinary actions are consistent with company policies and past practices to avoid claims of unfair dismissal.
• Procedure and Fairness: Dismissals must be procedurally fair, meaning the employee must be given an opportunity to respond to the allegations and present their side of the story. In this case, Ms. Maseko was allowed to explain her actions before a final decision was made. Section 188 of the LRA outlines the need for procedural fairness in dismissals.
Employers must exercise due diligence in investigating such allegations and ensure that disciplinary actions are based on clear, corroborated evidence of misconduct. In turn, employees are expected to act honestly and transparently when submitting medical certificates. This balance helps maintain trust in the employment relationship and upholds the integrity of company policies. Furthermore, by aligning disciplinary codes and procedureswith the Basic Conditions of Employment Act and the Labour Relations Act, employers can ensure compliance with legal requirements while safeguarding workplace standards.
