OPINION: Traditional healers are consulted by about 60% of the South African population.
By Advocate Michelle Smuts
LABOUR legislation states an employee is entitled to sick leave, and a sick leave cycle, during the employee’s duration of employment.
An employee’s sick leave cycle means that during each 36-month period of employment starting from the first day at work, an employee is entitled to paid sick leave. The sick leave cycle is equivalent to the exact number of days that an employee usually works in a typical six-week period.
This means that in case the employee works five days per week, then the employee is entitled to a 30-day sick leave cycle on full pay. On the other hand, if the employee works six days per week, then the employee will have a 36-day sick leave cycle.
Traditional healers are consulted by about 60% of the South African population.
Medical certificates are, more often than not, a requirement for employers when an employee has been ill.
No Medical Certificate –No Pay
In terms of the Basic Conditions of Employment Act (BCEA) an employer is not required to pay an employee if:
– The employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period.
– On request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of his/her sickness or injury.
What is required for a medical certificate to be valid?
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.
It is important to note apart from the BCEA, Sectoral Determination 13 (SD13) also regulates the agricultural sector. In terms of SD13 a medical certificate from the following persons will also be regarded as medical certificates:
– Clinic nurse practitioner.
– Traditional healer.
– Community health worker.
– Any other health professional authorised to diagnose medical conditions.
What about Covid-19 medical certificates?
Due to the unknown factors of the Covid-19 virus and the fact that infection can only be confirmed by a laboratory test, a traditional healer’s medical certificate will not suffice as a medical certificate to grant sick leave for isolation due to Covid-19 infection.
Validity of medical certificate
In the matter of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others ([LAC] JA78/10) an employee was dismissed for being absent from work. The employee had a medical certificate from a traditional healer, indicating that she had premonitions of ancestors. The employer dismissed the employee for being absent from work without having a valid medical certificate.
The CCMA and the Labour Court said the dismissal was not justified as she had a justifiable reason for not being at work. The case went on appeal to the Labour Appeal Court. The Labour Appeal Court said that the Constitution recognises traditional beliefs and practices, so employers should also accept these beliefs. The Labour Appeal Court, therefore, confirms the validity of a traditional healer’s medical certificate.
What does this mean for me as an employer?
For a traditional healer’s medical certificate to be acceptable as a valid medical certificate the following two requirements need to be present:
– The traditional healer needs to be certified to diagnose and treat patients.
– The traditional healer needs to be registered with a professional council.
If these requirements have been met, the medical certificate will be valid, and if not the employee may stand the risk of not being paid for his/her period of absence.
*Smuts is a senior legal advisor at the LWO Employers Organisation.
**The views expressed here are not necessarily that of IOL.
(This article was first published in Farmer's Weekly.)