MOST employers' human resources policies make provision for employees to produce medical certificates when they have been absent from work due to ill health.

The reason for doing so is to avoid the abuse of sick leave by employees who are not genuinely sick when they absent themselves from work.

It has often been established that some medical practitioners collude with employees by issuing sick notes in circumstances when an employee is not sick.

In certain instances employers have refused to accept suspicious medical certificates to the extent of seeking clarification from doctors on the nature of an employee's illness, because of the inadequate information that appears on the medical certificate.

Fairness and fairness alone is the yardstick in labour law. In applying and upholding the requirements of fairness the labour court also endeavours to uphold the law.

In Old Mutual Life Assurance Co SA Ltd v Gumbi the court found against an employee who had produced a vague medical certificate that disclosed his illness as "tension headache" and "enteritis". The court said that little evidential value could be attached to the certificate. The court also said that in cases where the employee had known about an illness before the hearing or was truly ill, the employee should have applied for a postponement before the hearing and that the mere production of a cryptic, unclear and vague medical certificate was not in the circumstances sufficient.

The courts have also ordered doctors to depose to affidavits in affirmation to the medical certificates that they issued.

In certain circumstances, employers have referred their employees to be examined by doctors of their choice in order to satisfy themselves that the employee was genuinely sick and unable to work due to ill health. Factors that will be considered by the court and questions that employees have to ask themselves when considering using a medical certificate as a reason for non-compliance with their contract of employment or poor performance are:

l Does the medical certificate disclose the true nature of the employee's alleged illness?

l Does the medical certificate state what treatment the employee will need to undergo?

l Does the medical certificate disclose that the employee is unfit to attend work, a CCMA hearing or court and the reasons for this incapacity?

l Is the employee deliberately trying to frustrate the proceedings?

Some employers have refused to accept standard printed forms, which are simply completed by the doctor. In Old Mutual Life Assurance the court held that a standard form containing printed and handwritten parts will not suffice as proof of sickness.

Be that as it may, the above legal principles must be considered in light of the doctor-client privilege.

This, however, should not be seen as a way out of not complying with court orders. In these circumstances the court may order that such evidence be heard separately.

- Lavery Modise, deputy chairperson of Eversheds, and Athi Jara, a candidate attorney at Eversheds.