Article 10/2023

On what basis can an employer reject a medical certificate utilised by an employee to justify his absence from the workplace?

_____________________________________

  • The first important issue is to appreciate the fact that a medical certificate constitutes hearsay
    evidence and is to be evaluated in the light of s3 of the Law of Evidence Amendment Act 45 of
    1998, which reads as follows:

    • Hearsay evidence
      • Subject to the provisions of any other law, hearsay evidence shall not be
        admitted as evidence at criminal or civil proceedings, unless –

        • each party against whom the evidence is to be adduced agrees to the
          admission thereof as evidence at such proceedings;
        • the person upon whose credibility the probative value of such evidence
          depends, himself testifies at such proceedings; or
        • the court, having regard to –
          • the nature of the proceedings;
          • the nature of the evidence;
          • the purpose for which the evidence is tendered;
          • the probative value of the evidence;
          • the reason why the evidence is not given by the person upon whose
            credibility the probative value of such evidence depends;
          • any prejudice to a party which the admission of such evidence might
            entail; and
          • any other factor which should in the opinion of the court be taken
            into account, is of the opinion that such evidence should be
            admitted in the interests of justice.’
  • Thus, such medical certificate, so constituting hearsay evidence, should not be admitted unless:
    • each party, against whom such evidence is to be adduced, agrees or
    • the medical practitioner himself or herself testifies or
    • it is in the interests of justice to admit such medical certificate
  • The second important issue to appreciate is the correct interpretation of applicable case law in
    this regard. In applying s3(1)(c) of the Law of Evidence Amendment Act to medical certificates,
    the labour appeal court, in Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC),
    approached the issue as follows:

    • the nature of the evidence to be introduced by means of a medical certificate is indeed
      opinion evidence, which is expert opinion evidence and cannot be given by a layman
    • the reason why medical evidence is not given needs to be investigated
    • due consideration should be paid to potential abuse, the fact that the doctor is not prepared
      to defend the certificate or is not prepared to spend time at the disciplinary enquiry, etc
    • prejudice to the employer, if the medical certificate is accepted without such expert evidence
      being led, obviously entails that the employer has been deprived of the opportunity to test
      the employee through its own practitioner
    • in the exercise of the employer’s discretion as to whether or not to permit the medical
      certificate to stand, the approach should be that, in the absence of an affidavit from the
      medical practitioner, the certificate should not be considered at all
    • lastly, the probative value of the hearsay evidence should be considered, pertaining to
      whether or not the employee showed that he was incapacitated to the extent that he was to
      be absent from work
  • In NUMSA v Kaefer Energy Projects (2022) 33 SALLR 11 (LC), the labour court, in applying the
    principles contained in Naidoo, held that, when a medical certificate is challenged, the onus shifts
    to the employee to prove, firstly, that he was indisposed and, secondly, the extent of his
    incapacity – in this matter, the labour court further held that the employee did not discharge such
    onus when the employer challenged the medical certificate and, therefore, the employee was not
    entitled to rely upon a medical certificate to justify his absence from the workplace

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).