The applicant was dismissed for submitting fraudulent medical certificates on six occasions. He argued that the dismissal was unfair due to the lack of a face-to-face hearing and claimed that he was unaware of the fraudulent medical practice. However, the commissioner found the written submission process to be fair under the LRA, and the applicant failed to provide a written defense. Therefore, his dismissal was deemed both procedurally and substantively fair. Malothe v Bidvest Protea Coin (Pty) Ltd [2024] 9 BALR 933 (NBCPSS)

Case Summary

The applicant was employed by the respondent, Bidvest Protea Coin (Pty) Ltd, as a site manager. It came to the respondent’s attention that a medical certificate dated 28 February 2024, submitted by the applicant after he was absent due to a medical condition was fraudulent. The applicant had submitted such a certificate on six occasions. The applicant was charged with ‘Fraud in that you knowingly submitted a fraudulent medical certificate on 6 (six) occasions and claimed sick leave payment from the company’.

The certificate, used to justify the applicant’s absence from work, purported to be issued by a legitimate medical practice. However, the certificate raised suspicions because it only provided a cell phone number, and the signing doctor was different from the one the applicant claimed to have consulted. Upon investigation, the respondent discovered that the medical certificate was fraudulent and dismissed the applicant on the grounds of dishonesty. The applicant referred the matter to the National Bargaining Council for the Private Security Sector, alleging procedural and substantive unfairness.

The key issue was whether the dismissal was procedurally and substantively fair under the Labour Relations Act No. 66 of 1995, as amended (“LRA”). The commissioner had to determine if the process followed by the respondent complied with the principles of procedural fairness and if the dismissal was justified based on the substantive facts of the case.

On the issue of procedural fairness, the applicant argued that his dismissal was unfair because he was not afforded a face-to-face hearing and was unable to cross-examine witnesses. Instead, the respondent requested a written submission from the applicant to explain the misconduct allegations. The applicant was notified on 7 March 2024 to provide his response in writing by 12 March 2024. However, he failed to submit any written defence.

The commissioner, referencing Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC), clarified that under the LRA, procedural fairness does not necessitate a formal face-to-face hearing. The employer is only required to conduct an investigation, provide the employee with a reasonable opportunity to respond, and then make a decision. In this case, the written submission process was in line with the respondent’s disciplinary code, which complied with Schedule 8 of the LRA. The applicant was given a clear and fair opportunity to present his case but chose not to do so. Thus, the commissioner found that the dismissal was procedurally fair.

Substantively, the applicant contended that he was unaware that the medical certificate was fraudulent and maintained that he had obtained it in good faith. He testified that the certificate was issued by a practice he believed to be legitimate, located in Khayelitsha. When confronted by the respondent about the discrepancies in the certificate, the applicant stated that he returned to the practice, requested a refund, and reported the matter to the police. The respondent argued that the applicant should have been suspicious of the certificate, especially since it contained anomalies, such as the wrong address and the name of a different doctor. Furthermore, the applicant failed to produce any corroborating evidence, such as a statement from a third party, to support his claim of innocence.

The commissioner found that the applicant’s explanations were unconvincing. For example, the applicant’s assertion that he believed “Du Toit” was a nickname for “Dr Adams” was deemed implausible. Moreover, if the practice were legitimate, it was unlikely that the applicant would have been refunded his money. The applicant’s failure to take photographs of the practice or provide other substantial evidence further weakened his case. The commissioner concluded that, on a balance of probabilities, the applicant knew that the medical certificate was fraudulent.

In determining the fairness of the sanction, the commissioner noted that dishonesty is a serious offense that fundamentally breaches the trust relationship between an employee and an employer. The commissioner cited the fact that the applicant had been employed for six years and should have known better than to submit a questionable medical certificate. Given the nature of the misconduct and the breakdown of trust, the commissioner found that dismissal was an appropriate sanction in this case.

Written by Lize Coetzee, Director at Coetzee Attorneys Inc.