Justified Sick Leave – The Need for a Valid Medical Certificate in the ambit of MIBCO (Motor Industry Bargaining Council) and SAF (Sick, Accident and Maternity Pay Fund)

Many of you will remember, as far back as 2007, that it was compulsory for an employee employed in the Motor Industry to belong to a Medical Aid and for employers to contribute at least 50% towards the Medical Aid.

Unfortunately agreements lapsed and from 2007, it is at the employer’s discretion whether newly appointed employees will be provided with this Social Benefit and on what terms. The result is that many of you do not have a medical aid and you might have become reliant on a clinic for medical attention. But what if you are unfit for duty and you did not see a Medical Practitioner and you do not have a Medical Certificate?

The Need of a Medical Certificate

In the Motor Industry, sick leave is dealt with in one of two ways, which are in terms of the MIBCO Main Collective Agreement (Agreement) and the Sick, Accident and Maternity Benefit Fund (SAF).

• The Agreement will apply when you are a MISA member and your employer is not a member of the Retail Motor Industry (Employers’) Organisation (RMI). The Agreement gives employers the discretion regarding the submission of a Medical Certificate, when you are off sick on any day(s) other than a Monday, Friday or day before/after a public holiday. As a norm your contract of employment or internal policies will give you guidance on when a medical certificate is required as per your employer’s discretion.
• The SAF Rules will apply when you are a MISA member and your employer is a member of the Retail Motor Industry (Employers’) Organisation (RMI). In terms of the SAF Rules, you do not need to hand in a medical certificate when you are off due to sickness for one day only, subject to this day not being a Monday, Friday or day before/after a public holiday. The SAF Rules is superior to the internal policy or the contract of employment, as far as the submission of a medical certificate is concerned, with one day’s leave.

What qualifies as a Valid Medical Certificate?

• Professional Council registered – The Agreement, as well as the Basic Conditions of Employment Act (BCEA), provides that a Medical Certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with the Professional Council established by an Act of Parliament.

A medical practitioner is defined in the BCEA as a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Services Act 1974 (Act No. 56 1974), that is the Health Professions Act.

• Traditional Healer certificates came under the spotlight in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others [2012] 11 BLLR 1099 (LAC). The default position was always that a Medical Certificate from a Sangoma or Traditional Healer is not acceptable. Times and practices are changing to accommodate our diversity in thinking, tradition, customs and beliefs as can be seen from the dispute. In this instance the employee, a Chef De Partie, requested a month’s unpaid leave to complete her Sangoma ‘course’. The employer refused and allowed her only one week unpaid leave. The employee then left the Traditional Healer’s Medical Certificate on her employer’s desk on the 1^st of June. According to this certificate the employee was ‘booked off’ until the 8^th of July with the reason for absence captured as ‘premonitions of ancestors’. Upon her return she was dismissed. Both the CCMA and the Labour Court overturned her dismissal. The employer took the dispute on appeal to the Labour Appeal Court and the court held that the Constitution recognises traditional beliefs and practices, so employers should accept these beliefs too. The crux of the outcome was that reasonable accommodation by employers are encouraged.

On 30 April 2014 the President signed the Traditional Health Practitioners Act (Act) and as a result Traditional Health Practitioners must, with effect from 1 May 2014, register with the Traditional Health Practitioners Council (Council) that was established in 2013. In terms of the Act a Medical Certificate issued by a Traditional Healer, who is registered with the Council, is accepted as proof of incapacity.

• Registered Nurses at a Clinic is currently the most contentious issue. Unfortunately a certificate signed by a person other than a qualified medical practitioner, someone authorised to examine and diagnose, is unacceptable. Rule 15(1)(j) of the Medical and Dental Professions Board Rules, set out the requirements of a valid medical certificate which includes the name, address and qualification of the practitioner with a clear indication of the identity of the practitioner who issued the certificate which will be personally and originally signed by him/her next to their initials and surname in printed or block letters. A certificate issued by a clinic does not comply with this one basic and essential requirement.
• Vaccination Certificate is identified as accepted proof of illness for paid sick leave in terms of the ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ (Consolidated Direction), gazetted on 11 June 2021. In terms of the Consolidated Direction, your employer has the discretion to implement a ‘Mandatory Vaccination Policy’. Paragraph 6(9) of the Consolidated Direction, which provides that your employer may accept a Covid-19 vaccination certificate issued by an official vaccination site in lieu of a medical certificate. This exception to the rule applies when you vaccinate in terms of a Mandatory Vaccination Policy and suffer from side effects keeping you away from work.

Conclusion

Our health is important and we try, in very challenging circumstances, to keep our bodies and minds healthy. The reality is that people, colleagues, friends and family are getting sick around us. You need to protect yourself and empower yourself by knowing what is needed for paid sick leave.

MISA is only a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time: 

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku