In the recent decision of the Labour Appeal Court, of Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and 3 Others the court considered the fairness of a dismissal of Ms Maseko, for having allegedly taken sick leave based on false sick notes from a dodgy medical practitioner.
Ms Maseko was employed by Woolworths as a store specialist at the time of her dismissal. In June 2018 she submitted a medical certificate issued by a certain Dr Frempong. This raised suspicion to her employer because it had received a warning via email, that this Dr Frempong was in the business of issuing (selling) suspicious medical certificates. The employer reviewed the employee file of Ms Maseko and found that she had submitted another medical certificate from the same doctor in March 2016. Ms Maseko denied that Dr Frempong issued both certificates. This caused even more suspicion and the employer went about investigating the matter.
After its investigation the employer concluded that the doctor was selling false medical certificates – proceeded to charge Ms Maseko for misconduct, being the breach of company policies and procedures – and dismissed her for this.
In the CCMA the employer’s testimony was that Ms Maseko had denied that the same doctor had issued the sick notes of 2016 and 2018 – she told them that in 2016 she was seen by a Dr Zanele. It turned out that Zanele was not a doctor at all but a nursing assistant in the practice of Dr Frempong. She also saw Ms Maseko in 2018, but they disagreed on the days of sick leave to be allowed, so Ms Maseko went to Dr Frempong at his other surgery. Ms Maseko’s supervisor and his colleague went to investigate – they visited the surgery of Dr Frempong – there they found dealings and negotiations for instantly issued sick notes, against payment of money. Further, they met Dr Frempong, who presented as untidy, he did not dress or look like a real doctor. He did however inform them that he had seen Ms Maseko relating to her sick leave in June 2018. The doctor’s rooms were in a poor condition, it was disorganised and did not present like that of a medical practitioner (in their view).
Dr Frempong testified for Ms Maseko and confirmed that he was a legitimate doctor. He testified that Zanele, the nursing assistant, looked after his second practice. He would at times leave some signed sick notes with Zanele which she would issue for him in his absence. He denied selling sick notes or issuing them to persons who are not sick.
The commissioner who heard the arbitration found that there was no evidence to prove that Ms Maseko had not been sick in March 2016 and June 2018 (when she used the sick notes). He found that the sick notes were valid and regular, having been issued by a qualified and registered medical practitioner. Her dismissal was therefore substantively unfair.
The employer was not satisfied and took the matter on review to the Labour Court. On review was found that the employer’s submission that the commissioner had failed to apply his mind to the evidence and material before him, was not supported by the record of the proceedings and the award that was issued.
Still unsatisfied with the outcome, the matter was then taken on appeal and the employer’s case, summarised, was that because of the so-called “untoward happenings” at the medical practice in question – the alleged sale of false sick notes, Ms Maseko could not have been sick in June 2018. As such it was presented, the sick note was irregular (and she was dishonest). The appeal court found this to be unsustainable as a defence to the appeal. There was simply no evidence in the proceedings to indicate that Ms Maseko had willingly and knowingly obtained a false sick note. There was not even any evidence that Ms Maseko has misled the doctor to believe she was sick, so obtaining a sick note. The appeal court noted that at the very least, an employer should investigate their suspicions (about the doctor) and if they are well founded, should warn its employees about using the service of that doctor – and this would include informing the HPCSA, for example.
The appeal court acknowledged that there may have been questionable activities at Dr. Frempong’s practice. However, even if true, these did not relate to Ms. Maseko’s dismissal. Furthermore, the evidence suggesting that other individuals purchased sick notes, which was entirely based on hearsay, was deemed irrelevant. The commissioner at the CCMA evaluated the evidence meticulously, favoring the testimony of Ms. Maseko over that of the employer’s witnesses. This decision was subsequently upheld by the Labour Court, which found no grounds to overturn the CCMA’s award.
Reflecting on this protracted legal battle, it seems unusual for an employer to pursue the dismissal of an employee to such lengths unless there was a genuine belief that she violated company policies and misused her sick leave entitlement. In workplaces, we often encounter assertions like “we all know what happened here.” While such a consensus might sometimes exist, without legal proof, employers should refrain from hastily disciplining or dismissing employees. Assumptions can be perilous; in Ms. Maseko’s case, it took years for her to clear her name, a process that was undoubtedly harrowing and disruptive to her personal and professional life. The employer, having lost in all available courts, now risks appearing unprincipled, potentially damaging its reputation.
It is crucial for management teams responsible for disciplinary proceedings to be thoroughly educated or to seek appropriate legal advice. This ensures the evidence used in disciplinary actions is rigorously vetted, safeguarding the integrity of such processes.
By George Herbst | Director
