4th August 2025

How are employee rights balanced with the employer’s legitimate expectations? Let us consider a hypothetical scenario: an employee is required to attend a scheduled disciplinary hearing. On the day of the hearing, the employee presents a medical certificate via WhatsApp or email, requesting sick leave that conveniently covers the day of the hearing. This action typically raises eyebrows with employers, as it is unclear whether it is a genuine request or a strategic manoeuvre.

From the outset, it is fundamental to recognise that an employment relationship is reciprocal. When an employment contract is concluded, each party incurs specific rights and obligations. The primary obligation of employees is to provide their personal services to the employer and for the employer to remunerate the employee accordingly. As Jogn Grogan in Dismissal (2014) rightly points out, the provision of services is a prerequisite to the employee’s right to claim wages.

Now, let us consider the given scenario of an employee subject to a disciplinary hearing. As a contractual obligation, the employee is obligated to tender their services to the employer, however, the employee suddenly presents what appears to be a medical certificate  informing that the employee is booked-off for “medical reasons”. The first aspect to understand is that a medical certificate does not suffice as conclusive evidence of inability to tender performance since it is only a professional opinion, not a factual statement (See Mgobhozi v Naidoo NO & others (2006) 27 ILJ 786 (LAC) (18 November 2005)

In this context of a written opinion issued by a medical practitioner,  it is essential for the employer to thoroughly examine the opinion to ensure its validity. Firstly, the employer is entitled to scrutinise the person who issued the medical certificate to verify whether it was issued by a registered medical practitioner capable of formulating an opinion on the employee’s condition. Secondly, the employer may study the content of the opinion to ascertain whether the diagnosis was based on direct observation, whether there is a proper diagnosis and whether the diagnosis in fact renderes the employee incapable of perfroming any functions. The certificate must provide for the medical conditions in laymens terms and cannot merely state: “medical condition”, as it was held in Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) (5) SA 552 (SCA) that little evidential value can be attached to a medical certificate  that does not reflect an independent diagnosis or an opinion as to the fitness of the employee to perform his normal work or to attend a disciplinary hearing.

It is crucial to note that a medical practitioner may be held liable for improper conduct or misconduct if they issue a certificate (written opinion) of indisposition without adhering to Rule 15 of the Rules relating to improper conduct or misconduct by a medical practitioner, as outlined in the Medical and Dental Professions Act, 1993. This rule requires the certificate to include detailed information about the employee’s illness and whether they are fit for duty or limited to less strenuous tasks.

Furthermore, employers have the right to delve deeper into the matter, particularly when sick leave intersects with ongoing disciplinary matters. For instance, in the Supreme Court case of Nghiwete v NSFAS, the employer was entitled to request an extended medical report to question the legitimacy of the medical certificates. This demonstrates the law’s ability to strike a balance between respecting employee privacy and holding employers accountable.

In such cases, the right to privacy is temporarily waived as long as the employee discloses the information necessary to obtain the requested relief. The burden of proof rests with the employee, and not the employer, to demonstrate their incapacity. If the employee wishes to rely on an opinion not to tender perforamnce, the employee actually waives their right to privacy in order to obtain the relief they seek.

In summary, the key points are the following:

• Employees and Employers have a reciprocal relationship with rights and obligations for both parties.
• Employee is contractually obligated to provide personal services to the employer in exchange for remuneration for such personal services rendered.
• Medical Certificates are not conclusive evidence of inability to work, medical certificates constitute professional opinion.
• Employers have a right to verify medical opinions and may thus scrutinise the medical practitioner’s credentials and the content of the medical opinion to ensure its validity.
• Medical practitioners must adhere to professional standards when issuing medical certificates, providing detailed information about the employee’s condition and fitness for duty.
• Employees seeking relief based on medical incapacity have the burden of proof to demonstrate their incapacity, potentially waiving their right to privacy in the process.
• WJ van Greunen.

DISCLAIMER

This article is for informational purposes only and does not constitute legal advice. Each matter depends on its own facts and applicable law. Readers are encouraged to consult a qualified legal practitioner for advice specific to their situation. This article is confined to matters of Namibian law, as at the date hereof.