The case of Woolworths v El Shadaai Workers Union of South Africa (“EWUSA”) serves as a critical reminder for employers to tread carefully when they suspect an employee has submitted fraudulent medical certificates.

Woolworths dismissed Ms Maseko for submitting irregular medical certificates in contravention of their policies and procedures. Maseko had provided two medical certificates from Dr Frempong who was suspected of issuing and selling fraudulent medical certificates. 

Woolworths conducted its private investigation by sending two employees to Dr Frempong’s surgery. The investigation led them to conclude that Dr Frempong was unqualified, unregistered and selling fraudulent medical certificates. Based on this, they dismissed Ms Maseko, claiming she wasn’t genuinely ill on the occasions she submitted the medical certificates.

Ms Maseko challenged her dismissal, claiming it was unfair. The Labour Appeal Court agreed – it found that Woolworths couldn’t prove that Ms Maseko knew about Dr Frempong’s fraudulent activities or that she wasn’t genuinely ill. The evidence actually showed that Dr Frempong was indeed qualified and registered with the appropriate regulatory bodies. Therefore, Ms Maseko followed Woolworths’ policies and procedures by obtaining her medical certificates from a legitimate doctor. The Court emphasised that the onus is on the employer to prove the invalidity of medical certificates, not merely the practitioner’s dubious activities. 

Ms Maseko’s unfair dismissal was upheld and she was reinstated with compensation for the six years she had been unemployed. 

The lessons for Employers from this judgement include:

• Employers must have clear, substantiated proof of an employee’s awareness or involvement in fraudulent activities before taking disciplinary action.
• Any concerns about a doctor’s qualifications or activities should be reported to the relevant regulatory bodies.
• For misconduct to be established, employers must provide solid evidence that an employee was not genuinely ill when submitting a medical certificate.
• The Woolworths judgment underscores the importance of ensuring that allegations are supported by true and correct evidence and following proper procedures before disciplining employees.