By Noxolo Majavu – Business Day

The court said evidence provided by Woolworths did not meet legal standards as it failed to show the employee knew the doctor was fraudulent

A recent judgment by the Labour Appeal Court (LAC) has raised the bar for companies to provide evidence of employees fabricating sick notes to justify their dismissal. The ruling compelled retail giant Woolworths to reinstate an employee it terminated six years ago.

The employee was fired after being accused of handing in fake sick notes, but the CCMA later overturned the decision.

Woolworths challenged the CCMA’s ruling; however, its appeal was unsuccessful as the LAC ruled in favour of the employee. 

Woolworths relied on evidence gathered by private investigators at the retail company’s Emalahleni branch in Mpumalanga who probed a doctor's practice. They believed it to be bogus and issuing fraudulent sick notes. 

The court determined the evidence provided by Woolworths did not meet legal standards as it failed to show the employee knew the doctor consulted was fraudulent.

“Surely it cannot be that a doctor who is otherwise qualified as a doctor, who dabbles into some illegal activity or other illegal activity of selling medical certificates is somehow assumed to be disqualified from examining people and booking them off sick, untainted by the issues of illegally selling medical [certificates],” said judge Mbulelo Jolwana. 

“The idea that an employee who happens to go to a doctor who is not trusted by an employer must be subjected to a disciplinary process for using that doctor is troubling.”

The company questioned the integrity of the employee, Lorraine Maseko, after she submitted sick notes from Dr Robert Frempong’s medical practice. An earlier sick note she submitted in 2016 cited Frempong as the issuing doctor, while another submitted earlier that year cited a nurse named Dr Zanele as the issuing doctor.

This discrepancy led managers to suspect that sick notes were being sold at the practice. Maseko held the position of store specialist before her dismissal in 2018. 

Private investigators discovered that Dr Zanele was in fact Frempong’s nursing assistant, despite Maseko’s claim that Dr Zanele was a different doctor. The medical certificate showed similarities between the two. The retail company’s probe found that Maseko breached company policies by submitting irregular certificates and was dismissed in 2018. 

“It is even concerning that an employee who may unknowingly go to what appears to be a doctor’s normal practice and is booked off sick could be dismissed if it turns out that the doctor was neither qualified nor unregistered. Ordinary people including workers cannot be expected [to know in which field] a doctor is qualified, which [doctor] is on suspension, and which one is, for some reason, not entitled to practise,” Jolwana added. 

Some of the company stores in Emalahleni were warned about Dr Frempong's practice in a circular issued by Woolworths. 

Judge Jolwana further ruled the verification of a doctor’s qualification should be dealt with by regulatory bodies such as the Health Professions Council of SA (HPCSA), including the extent to which the assistants can help the doctor. 

According to the investigation conducted by inspectors of the company, the charges of the practice selling sick notes was substantiated by the impressions they got when they visited the medical practice, such as the clutter in Frempong’s consultation room, the untidiness of the surgery and length of Frempong’s nails. On their visit to the hospital, they also heard that people were there to buy sick notes. 

Maseko’s attorney, Andrew Goldberg, told Business Day his client felt vindicated and should be returning to work soon.  

“In short, the court found that the public has no duty to ascertain whether a doctor is qualified or not. The public go to the doctor when they are sick. Often, they do not have a choice as to which doctor to go to. They just go to the local doctor. As such, the right of a doctor to practice is an administrative issue and the HPCSA should be the body dealing with this issue. The doctor still had his licence and the fact that he may have had illegal dealings or even been selling sick notes was not connected to this matter,” Goldberg said.  

The CCMA ruled that Maseko should be reinstated; however, Woolworths took the award on review to the labour court. It complained that the commissioner failed to consider the evidence uncovered by the company investigators and the contradictions in the employee’s case. The Labour Court disagreed. It set out that the employee was not dishonest and the doctor had confirmed her version. 

Goldberg further said that they were working towards compelling the company to pay back the six years’ pay.

“She is excited to return to work after six years of being unemployed because the issue had affected her wellbeing for so long, she could not believe that the court ruled in her favour,” Goldberg said.