An employer refuses to accept a sick note/medical
certificate from an employee signed off by a clinic sister and withholds the
employee's pay. What can the employee do?
Section 22(5) of the Basic
Conditions of Employment Act (BCEA) provides for sick leave and, more
specifically, paid sick leave. However, what happens when your employer
requests proof of incapacity (sick note/medical certificate)?
Section 23(1) of the BCEA
provides that an employer is not obliged to pay an employee if an employee has
been absent/sick from work for more than two (2) consecutive days or more than
two (2) occasions during eight weeks. On request by the employer, the employee
fails to produce a sick note/medical certificate recording that the said
employee was unable to perform work for the duration of the employee's absence
on account of sickness or injury.
Section 23(2) of the BCEA
records that the sick note/medical certificate must be issued and signed by a
medical practitioner, or any other person certified to diagnose and treat
patients and registered with a professional council established by an Act of
Parliament.
A registered professional
council established by an Act of Parliament refers to the Health Professions
Council of South Africa (HPSCA). It is a requirement for all healthcare
practitioners in South Africa to register with the HPSCA to practice in South
Africa lawfully.
In this regard, a clinic sister,
nurse, traditional healer and the like cannot issue and sign a sick
note/medical certificate as such persons are not qualified to examine and
diagnose patients. The employer can therefore reject such a sick note/medical
certificate, and the employer can treat the period of the employee's absence as
unpaid leave.
An employer must accept a valid
sick note/medical certificate issued and signed by a registered healthcare
practitioner. If they withhold the employee's pay due to the employee being
unable to attend work (on account of the employee's illness/injury in line with
a valid sick note/medical certificate), this would be an unfair labour
practice. The employee can take the necessary action against the employer.
Moreover, suppose the employer
can prove that the said employee is, in fact, not sick. In that case, even
though the employee has a valid sick note/medical certificate, the employer can
proceed with disciplinary actions against the employee.
It is vital to ensure that when you obtain a sick
note/medical certificate, it must be issued and signed off by a healthcare
practitioner who is registered with a professional council, failing which your
employer has the right to reject the sick note/medical certificate.
