In essence, Section 23(2) of the BCEA sets out that the 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 a professional council established by an Act of Parliament.
While the above seems quite straightforward, it has been the subject of much debate. Fortunately, both the Health Professions Council of South Africa (HPCSA) and the Allied Health Professions Council of South Africa (AHPCSA) have documented codes and rules regarding who is a medical practitioner and, as such, who is allowed to issue a medical certificate. The problem, however, is that neither of these councils recognises traditional healers.
There are two questions that employers may face when their employees present a "medical certificate" from a traditional healer:
- Can I follow disciplinary steps for absenteeism?
- Do I need to pay this employee's sick leave?
In answering the first question, and as there is very little authority on the subject, one needs to consider the Supreme Court of Appeal case of Keviets Kroon Country Estate (Pty) Ltd and Mmoledi & Others [2014] 1 ALL SA 636 (SCA). In this case, the employee was dismissed for staying away from work (unauthorised absence). However, the employee had a "medical certificate" from a traditional healer, which stated that the employee was unable to work for the duration of one month.
The dismissal in the above matter was held to be unfair for several reasons, cultural beliefs and traditional beliefs, and the sincerity of the adherent's belief being a few of the considerations. It is therefore advised that an employer exercise caution before proceeding with disciplinary steps against an employee who has furnished a "medical certificate" from a traditional healer and that thorough consideration be given to all facts at hand if steps are to be taken.
It should be noted that specific sectoral determinations, such as the Forestry Sector, provide for medical certificates from traditional healers.
The second question is seemingly straightforward. A traditional healer is not a medical practitioner registered with a professional council. As such, the provisions of Section 23(2) of the BCEA are not complied with, and an employer does not need to compensate an employee with paid sick leave.
In May 2014, a proclamation was made, giving rise to several provisions of the Traditional Health Practitioners Act of 2007. One of the provisions was the establishment of the interim Traditional Health Practitioner Council of South Africa (THPCSA). However, to date, the Minister of Health has not promulgated the relevant regulation required to bring traditional healer certificates in line with the BCEA requirements. Therefore, employers do not have to pay employees who produce traditional healer's medical certificates as proof of absence. Employers should, however, accommodate traditional healer certificates on their merits before taking any disciplinary action against the employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
