Introduction

Employee absenteeism on account of illness remains a persistent operational challenge for employers. In recent years, however, concerns surrounding the submission of irregular or fraudulent medical certificates have intensified, largely due to the increasing ease with which such certificates may be obtained. Employers are consequently required to strike a careful balance between respecting employee privacy and safeguarding the integrity of workplace policies.

A recurring and particularly complex issue arises when an employee submits an irregular sick note and, when confronted, pleads ignorance. While such a defence may appear implausible at face value, recent jurisprudence demonstrates that the legal position is far more nuanced. Central to the enquiry is whether the employee knowingly engaged in misconduct.

This article examines this issue through the lens of two key decisions: NUMSA obo Tlhone v Harmony Gold Mining Company Ltd (2025) and Woolworths (Pty) Ltd v Maseko & Others (2024) ZALAC 29, with reference to the applicable statutory framework, notably the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA).

The BCEA regulates sick leave and provides that employees are entitled to paid sick leave upon submission of a valid medical certificate. However, it does not comprehensively define the evidentiary burden required to prove misconduct relating to fraudulent certificates.

The LRA, particularly section 188, governs dismissals and requires that any dismissal must be both substantively and procedurally fair. In cases involving alleged dishonesty, the employer bears the onus of proving that:

1. misconduct occurred; and
2. dismissal was an appropriate sanction in the circumstances.

Crucially, where dishonesty is alleged, the employer must establish intent or knowledge on the part of the employee.

In NUMSA obo Tlhone v Harmony Gold Mining Company Ltd (2025), the employee was dismissed after submitting a fraudulent sick note following a single day of absence. Her defence was that she had received the note from a receptionist and believed it to be legitimate.

The employer’s investigation revealed that:

1. the issuing doctor denied authoring the certificate;
2. the certificate contained clear irregularities; and
3. the employee had previously submitted legitimate medical certificates, demonstrating familiarity with proper procedures.

Additionally, the employee’s testimony was inconsistent and unreliable.

The Commissioner ultimately found that the employee had acted dishonestly. Importantly, the finding was not based solely on the irregularity of the certificate, but on the inference of knowledge and intent, drawn from circumstantial evidence and credibility assessments.

This case illustrates that where an employer can demonstrate that the employee knew or ought reasonably to have known that the certificate was invalid, dismissal may be justified.

In contrast, the outcome in Woolworths (Pty) Ltd v Maseko & Others favoured the employee.

The employee had submitted medical certificates issued by a doctor whose practice was later found to be irregular, including the improper delegation of issuing certificates to an assistant. The employer conducted an extensive investigation and concluded that the certificates were fraudulent.

However, critical evidence undermined the employer’s case:

1. the doctor confirmed that he had personally examined the employee and issued the certificate;
2. the irregularities related primarily to the doctor’s internal practices, rather than the employee’s conduct; and
3. there was insufficient evidence that the employee knew of any wrongdoing.

The Labour Appeal Court held that the dismissal was substantively unfair. It emphasised that employees cannot be expected to investigate the legitimacy of medical practitioners or the internal compliance of medical practices.

This case underscores a fundamental principle: the mere submission of an irregular medical certificate does not, in itself, constitute misconduct. The employer must prove that the employee acted with knowledge or intent.

The divergence between these two cases turns on a single, decisive factor—knowledge. In Harmony Gold, the employee’s conduct and evidence pointed toward awareness of the irregularity. In Woolworths, the employer failed to establish that the employee knew or reasonably should have known that the certificate was invalid.

The Labour Appeal Court explicitly recognised the socio-economic realities facing many employees, noting that workers are generally not equipped to distinguish between qualified and unqualified practitioners or to assess compliance with professional regulations enforced by bodies such as the Health Professions Council of South Africa.

The jurisprudence establishes that employers must adopt a rigorous and evidence-based approach when dealing with suspected fraudulent sick notes. This includes:

1. Documentary Evidence: Scrutinising the certificate for inconsistencies or irregularities.
2. Independent Investigation: Verifying the authenticity of the certificate with the issuing practitioner.
3. Corroborative Evidence: Gathering supporting evidence, including witness testimony and prior conduct.
4. Assessment of Credibility: Evaluating the employee’s explanation and consistency.

Absent clear evidence of dishonesty, dismissal is likely to be found substantively unfair.

The defence of ignorance presents a practical challenge. While it may be abused in certain instances, the courts have cautioned against imposing unrealistic expectations on employees.

Ignorance will not automatically exonerate an employee. Rather, it must be assessed against:

1. the employee’s experience and prior conduct;
2. the nature and obviousness of the irregularity; and
3. the plausibility of the explanation provided.

Where ignorance is genuine and reasonable, dismissal may be inappropriate. Conversely, where ignorance is implausible or contradicted by evidence, it will not shield the employee from disciplinary consequences.

Given the complexities involved, the most effective strategy for employers lies in prevention. This includes:

1. Clear Policies: Establishing detailed rules on sick leave and medical certificates, aligned with the BCEA.
2. Employee Education: Informing employees about the requirements of valid medical certificates.
3. Consistent Enforcement: Applying policies uniformly to avoid claims of arbitrariness.
4. Fair Procedures: Ensuring compliance with procedural fairness requirements under the LRA.

By proactively addressing the issue, employers can reduce ambiguity and strengthen their position in disciplinary proceedings.

Conclusion

The submission of irregular medical certificates presents a legally intricate issue that cannot be resolved through a rigid or mechanical approach. South African labour law requires a careful, fact-specific enquiry into the employee’s knowledge and intent.

The contrasting outcomes in Harmony Gold and Woolworths illustrate that ignorance, while not an absolute defence, may be decisive where the employer cannot prove dishonesty. Ultimately, employers must ground disciplinary action in clear, corroborated evidence and ensure that both substantive and procedural fairness are upheld.

In navigating these challenges, the emphasis must remain on balancing workplace discipline with fairness, thereby preserving the trust relationship that lies at the heart of the employment contract.

For personalised advice tailored to your needs, consult an attorney at SchoemanLaw Inc