In a landmark ruling, the Labour Appeal Court (LAC) has set a precedent requiring companies to provide more substantial evidence when dismissing employees over allegedly fabricated sick notes. The ruling compelled retail giant Woolworths to reinstate an employee it terminated six years ago after accusations of submitting fake medical certificates.
The case revolves around Lorraine Maseko, a former store specialist at Woolworths’ Emalahleni branch in Mpumalanga, who was dismissed in 2018. Maseko had submitted sick notes from Dr. Robert Frempong’s practice, which Woolworths suspected of issuing fraudulent certificates. Woolworths' internal investigation, led by private investigators, uncovered discrepancies in the sick notes, leading to Maseko's dismissal. The company claimed that some notes were issued by Dr. Frempong and others by his assistant, who was misrepresented as a different doctor.
The Commission for Conciliation, Mediation, and Arbitration (CCMA) overturned the dismissal, ruling in Maseko's favor. Woolworths challenged the CCMA's decision, but the Labour Appeal Court upheld it, mandating Maseko’s reinstatement.
Judge Mbulelo Jolwana, in his judgment, criticized Woolworths for failing to prove that Maseko knowingly engaged with a fraudulent doctor. He emphasized that employees cannot be held accountable for the professional conduct of medical practitioners, stating, “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 ”
Jolwana expressed concern about penalizing employees for consulting doctors who may later be deemed untrustworthy by employers. He further stated, “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.”
The investigation by Woolworths revealed Frempong’s assistant, referred to as Dr. Zanele, was misrepresented in the certificates, leading to suspicions about the practice. The private investigators noted the disorganized state of Frempong’s clinic and the alleged selling of sick notes. However, these findings were deemed insufficient by the court to justify Maseko’s dismissal.
Maseko’s attorney, Andrew Goldberg, expressed satisfaction with the ruling, highlighting its broader implications. “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,” Goldberg stated.
The court's decision underscores that verifying a doctor's qualifications is the responsibility of regulatory bodies like the Health Professions Council of South Africa (HPCSA), not the patients. The ruling further criticized Woolworths for attempting to shift this burden onto Maseko.
With the court ruling in her favor, Maseko is set to return to her position at Woolworths. Her legal team is also pursuing compensation for the six years of lost wages. Goldberg noted that Maseko felt vindicated and relieved after a prolonged period of unemployment and stress due to the legal battle.
“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 added.
This ruling serves as a significant reminder for employers to exercise diligence and fairness in disciplinary actions, particularly when questioning the authenticity of medical certificates.
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