It often happens that employees charged with serious misconduct produce sick notes from a doctor or psychologist claiming to be suffering from depression in order to seek a postponement of their disciplinary enquiry.
Such certificates often provide the standard wording that the employee is “unfit to attend work” and there is no indication given as to whether the employee can attend their disciplinary enquiry.
While there are genuine cases of depression and the employer should be sympathetic to such cases, there are some employees who abuse medical certificates.
Typically, this category of employees are on paid suspension and request a series of postponements on the basis of their sick notes until some indefinite time in the future thus, delaying the disciplinary enquiry at the employer’s expense.
Employers are not without a remedy and there are some useful approaches when dealing with sick notes indicating “depression” that will help separate the wheat from the chaff.
Medical certificates should not be treated by the employer as a “magical document” that results in the postponement of a disciplinary enquiry.
As a starting point, where the employer suspects foul play, the employer is entitled to contact the health practitioner to enquire whether the practitioner did indeed issue a certificate and whether the practitioner consulted the patient.
The employer should further be guided by the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa with respect to medical certificates. This has been dealt with in our previous alert.
An employer is also entitled to reject the certificate unless the doctor personally testifies at the disciplinary enquiry confirming their diagnosis. In the absence of such evidence, the chairperson of the enquiry is entitled to reject the medical certificate on the grounds that it constitutes hearsay evidence.
In Mgobhozi v Naidoo NO & others  3 BLLR 242 (LAC) the Labour Appeal Court confirmed that medical certificates without supporting evidence from doctors may amount to hearsay and the Courts should be especially vigilant to prevent abuse.
The issue of doctor patient confidentiality does not arise where the employee calls the doctor to testify as the employee is entitled to waive doctor patient confidentiality.
The doctor ought to be called by the employee to testify in person about amongst other things, their diagnosis, how such diagnosis was arrived at, whether this was a sudden onset or single episode, whether they have performed any tests on the employee to test their cognitive impairment and what was the employee’s scoring on such tests.
The Mini-Mental State Examination (MME) or Folstein test and the Montreal Cognitive Assessment (MoCA) are examples of widely used screening assessments for detecting cognitive impairment.
The MME is an 11-question measure that tests five areas of cognitive function: orientation, registration, attention and calculation, recall, and language. The maximum score is 30. A score of 23 or lower is indicative of cognitive impairment. The MMSE takes only 5-10 minutes to administer.
The MoCA test can be used to evaluate attention, concentration, and working memory.
The idea behind such questions is to elicit as much information as possible regarding the capacity of the employee to testify and give instructions to their representative to assess their capacity to participate in their disciplinary enquiry.
It is for this particular reason that a recommendation in a certificate which indicates that the employee is unfit to attend work is not sufficient. The employee is on suspension and is not “working” during the course of the disciplinary hearing. As stated above, they are simply required to either testify or provide instructions to their representative.
The Employer is also entitled to request that the Employee subject themselves to an independent assessment by their own doctor or psychologist who may then testify as to their opinion of the diagnosis.
It may be prudent where employees request postponements of their disciplinary enquiry on the basis of an illness, to obtain the assistance of a labour expert in ensuring the procedural and substantive fairness of refusing a postponement and proceeding with the hearing in the employee’s absence.