The Sick Note That Won’t Stop Your Disciplinary Hearing

Anndine Dippenaar
11 hours ago
5 min read

It happens in every HR department. A disciplinary hearing is scheduled. The employee has been charged with serious misconduct. Then, the morning of the hearing, a message arrives: the employee is sick. There is a doctor’s note. They cannot attend.

The instinct is to postpone. But the law does not require automatic deference to a medical certificate. Our courts have said so repeatedly over nearly two decades and yet the misconception persists, costing employers dearly.

A Sick Note Is Hearsay Evidence

A medical certificate is a written statement by someone who is not present at the hearing, i.e. the doctor. Its value depends entirely on the credibility of a person other than the employee who hands it up. That is the definition of hearsay under section 3 of the Law of Evidence Amendment Act 45 of 1988.

In Mgobhozi v Naidoo NO (2006) 27 ILJ 786 (LAC), the Labour Appeal Court confirmed that medical certificates without a supporting affidavit from the doctor or without the doctor testifying, carry little or no evidentiary weight. The court drew a pointed inference from the absence of such support, that the doctors were not prepared to go on oath to defend what the certificate said.

A chairperson is therefore not simply required to accept a certificate at face value. It must earn its place as valid justification for a postponement.

The Certificate Has to Answer the Right Question

Most sick notes say the employee is “unfit for work.” But a disciplinary hearing is not work. The employee is not being asked to operate machinery or serve customers, they are being asked to respond to allegations. These are different activities.

The Supreme Court of Appeal made this explicit in Old Mutual v Gumbi (2007) 28 ILJ 1499 (SCA). A certificate recording “tension headache and enteritis” was produced mid-hearing. The SCA upheld the dismissal. The certificate said nothing about whether the employee was unable to attend a hearing. The chairperson was justified in requiring his presence and assessing his capacity personally.

“Unfit for work” and “unable to attend a hearing” are not the same thing. A certificate that does not specifically address the employee’s capacity to participate in proceedings does not justify a postponement.

Context and Pattern Are Decisive

In NUMSA v Kaefer Energy Projects (Pty) Ltd (2022) 43 ILJ 181 (LC), all 44 scaffolding supervisors failed to report on the first day back after a long weekend, mid-wages dispute. Forty-two produced medical certificates with six from the same doctor, most describing the illness as simply “medical condition.” The Labour Court found the certificates inadmissible and upheld all dismissals.

In Epibiz v CCMA (2023) and others 44 ILJ 2226 (LC), an employee acquitted of misconduct charges produced four consecutive monthly certificates from the same doctor, all recording her illness as “Consultation” a word describing an appointment, not a condition. Under cross-examination, she could not explain what illness “Consultation” referred to. The Labour Court set aside the finding of unfair dismissal and observed that doctors have a civic duty not to be accomplices in enterprises designed to deceive employers.

The timing of the certificate, the pattern of submissions and the content of the diagnosis are all factors a chairperson is entitled and expected to consider.

When Incapacity Is Claimed: The Burden Lies With the Employee

Where an employee claims a psychological condition prevented their attendance, the onus is on them to prove it. In Pahlanga v The Petroleum Oil and Gas Corporation South Africa (2021) ZALCCT 48, the employee raised a possible psychological incapacity defence in mitigation but led no expert evidence to show his absence was caused by incapacity rather than choice. The Labour Court was clear: a vague letter from a wellness practitioner that does not answer the relevant questions will not discharge that burden.

What Chairpersons Should Do

Scrutinise the certificate
Does it name a specific diagnosis? Does it address the employee’s ability to participate in a hearing or only speak to fitness for work? If it says “medical condition,” “stress,” or “consultation,” it is providing very little that can be evaluated.
Ask for the doctor’s confirmation
This can be done via email from the doctor. If none is provided, inform the representative that the certificate is hearsay and request confirmation from the doctor that the employee is too ill to participate in a disciplinary enquiry. Document the exchange. The failure to provide substantiation is itself a relevant factor in the postponement ruling.
Consider the circumstances
Is this the first postponement request or part of a pattern? Was the certificate produced on the morning of the hearing after months of preparation? A chairperson who weighs these factors and records their reasoning is in a far stronger position than one who simply defers.
Make a ruling and record your reasons
Whether you grant or refuse the postponement, write down your reasoning before proceeding. If you refuse and continue in absentia, the quality of that record is what will determine how the matter is resolved if challenged later.

Courts are not unsympathetic to genuine illness. Where an employee is truly incapacitated and can demonstrate it through credible evidence, that must be respected. But the legal framework is equally clear that disciplinary proceedings cannot be held hostage indefinitely by certificates that are vague, untested, and strategically timed.

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This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.

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