Fraudulent medical certificates are quickly becoming one of the most common misconducts for which we chair hearings and quite often there is insufficient evidence to find an Employee guilty.
This type of misconduct falls into the category of dishonest conduct. To find an employee guilty of dishonesty it must be established that he/she committed the offence with intent; the intent to benefit from it and the intent to mislead you. It is not enough to prove that the medical certificate was issued by a non-registered “medical practitioner” but it must be proven that the employee was aware that the medical practitioner was not registered and the medical certificate was fraudulent.
Consider this, when you visit your local GP have you ever asked him/her whether he/she is registered? Or searched for their practice to determine if he/she is registered? You see a building with clear signage, there is a reception area, the Doctor has various medical equipment and therefore you assume that the Doctor is registered. You, as the Employer, need to prove that on a balance of probabilities the Employee could not have reasonably believed that that medical practitioner was registered.
What to look for in a medical certificate:
A medical certificate must set out clearly the Medical practitioners name, practice number, address and telephone number. It must set out when he/she saw the patient and for how long he/she will be unfit to perform his/her duties. It does not need to disclose the reason for the employee’s incapacity to work. Consider whether any alterations have been made to the document. Is the period for which the Employee has been booked off unusually long? Is the information on the document logical i.e is the contact number from a different province whereas the address is listed nearby.
I pause to note that whilst a patient has the right to privacy you are entitled to contact the Doctor to establish whether he/she did, in fact, see this Employee and the dates for which he/she was booked off (Note that falsifying the dates also renders the medical certificate invalid and is not only a serious misconduct in the workplace but is a criminal offence).
The Investigation:
- Peruse the medical certificate and attempt to contact the Doctor
- Go to the address or send an employee that you can trust “undercover” to purchase a medical certificate. That Employee must be available to testify as to his/her experience with this “Doctor”.
- If you cannot determine where the Doctor is, ask the Employee to take you to the site where he/she went, if he/she is unable to then it can be questioned whether he/she did, in fact, go to a Doctor
- Conduct an inspection of the site; take photos of the premises, take a witness with you if it is not possible to take photos. If the “Doctor” is operating from a shack in an informal settlement with no medical equipment available etc then on a balance of probabilities the Employee cannot state that he/she believed it was a legitimate Doctor.
- If the medical certificate has been altered discuss whether the writer of the medical certificate is prepared to testify as to the original contents
The above sets out just a few examples of what will assist you in proving your case. It is serious misconduct which is met with a severe sanction and therefore it is imperative to ensure there is sufficient evidence to secure a guilty finding and an appropriate sanction.
ABOUT THE AUTHOR
Victoria Thompson completed her LLB degree with the University of South Africa while working for SEESA as a legal assistant. Upon obtaining her degree she was promoted to Legal Advisor in the Labour Department.