Operational requirements v cultural rights and sangoma’s

In the case of Kievits Kroon Country Estate (Pty) Ltd v CCMA & others[1] the proverbial can of worms was opened by the award of the commissioner. On closer scrutiny however, it is clear that the commissioner ruled on the facts before him, as commissioners should and this review of the labour court should not be seen as a blanket consent to employees to take extended and unauthorised absence from employment. On the other side, employer should respect the cultural beliefs of employees as well.

After five years’ service, the respondent employee applied for a month’s unpaid leave to attend a ritual ceremony which formed part of her training as a sangoma. On behalf of the employer it was testified that the employee approached him and stated that she was attending a traditional healer’s course. She requested to work morning shifts only to attend the course in the afternoon. As the request would affect other chefs in the kitchen, he called a meeting with all the relevant parties and asked them if they had any objection if she was allowed to work morning shifts only. They all agreed that they would not have a problem. The employee agreed that if the need arose, she would still assist during the night shifts.

Everything went smoothly until she approached him again during May and requested to be granted one month’s unpaid leave. He could not agree to her request as they were already short-staffed. It was during a very busy period. He spoke to the human resources manager and because the third respondent did not have enough leave, offered her one week unpaid leave. She did not accept one week and left on 1 June 2007 after her shift. The applicant employee absented herself from work for a month. The applicant was charged, inter alia, with absence from work without permission and insubordination, and dismissed. The applicant claimed that she had had visions for several years, and that a traditional healer had recommended that she attend the ceremony. Her manger maintained that he would act in a similar fashion if another employee was to approach him for leave to do a karate course. He denied that he is a racist and does not have respect for African traditions and customs.

During cross-examination, he said that the employee would not have been dismissed if she had submitted a medical certificate. He did not agree that attending a traditional ritual was a valid reason for being absent from duty, being ill was but not attending sangoma training. The HR manager testified that she did not qualify for leave and that it was a busy time of the year. She offered her one week but not a month. The employee declined it. Both Walter and Dreyer stated that they would not have denied her leave or dismissed her if she had produced a medical certificate from a registered medical practitioner. On behalf of the employee testified the sangoma she was seeing, who explained her visions.

The respondent commissioner accepted that the employee believed that she would have died had she not attended the ceremony, and that dismissal was accordingly inappropriate because the employee’s absence was due to circumstances beyond her control. The applicant was ordered to reinstate her from the date of the award.

The arbitration award:
The traditional healer testified that the employee was very ill when she came to her for treatment. She stated further that she would have died or suffered a serious misfortune if she had ignored her ancestor’s calling. The third respondent testified that should she have ignored her ancestor’s calling and continued to work, she would have collapsed and no one would have been able to help her.

The commissioner said that employees have a fundamental duty to render service and their employers have a commensurate right to expect them to do so. A basic element of this duty is that employees are expected to be at their workplaces during working hours, unless they have an adequate reason to be absent. According to John Grogan, Dismissal, Discrimination & Unfair Labour Practices: Juta & Co Ltd (2005) at 239, an explanation for an absence would be adequate if employees could prove that the absence was beyond their control.

Another issue which appeared clearly from the evidence was that there was a lack of empathy and understanding of cultural diversity in the applicant’s workplace. The employer did not understand her calling and did not grant her leave as it did not deem her to be ill. The employer acted in the interest of the company and the letter of the sangoma was of no consequence. If she was ill, she would not have been dismissed. The issue was whether there was any justifiable reason for the third respondent to disregard the applicant’s instructions. The third respondent had to prove and convince him that her absence from duty was necessitated by circumstances beyond her control to be absolved from blame.

The commissioner equated her visions to the situation of Jona who ignored the call of God. The commissioner said that what was good for the gender must be good for the goose also. The third respondent believed that she was called by the ancestors to become a sangoma. Evidence was led that she should have died if she had continued to work and disregarded her calling. It appears to him that the third respondent had decided to follow the sangoma course to save her life. She must have genuinely believed that if she did not do so, she would die or suffer a serious misfortune. The commissioner said that the inescapable conclusion which he arrived at, was that the third respondent’s absence from duty was due to circumstances beyond her control. She was justified to disregard the applicant’s instructions and attend the sangoma course and reinstated herself.

The labour court, in the review had to decide whether he acted as a reasonable decision maker and did not make any award on the question as to whether she was justified in her absence. It merely considered the conduct of the commissioner.

The court noted that this case sadly shows what happens when cultures clash in the workplace. On the one hand we have an applicant that was concerned about making money at all costs and on the other hand an employee who had visions and had believed that her ancestors were calling her to become a sangoma. The applicant does not regard a calling to be an ancestor as an illness. The third respondent believes that if she did not heed the calling to become a sangoma, she would become ill.

The court confirmed that the ultimate question that needs to be decided is whether the third respondent’s absence from work was justifiable. It is trite that in assessing the fairness of a dismissal for absenteeism the following factors are normally considered relevant: the reason for the employee’s absence, the duration of the absence, the employee’s work record, and the employer’s treatment of this offence in the past. The onus rests on the employee to tender a reasonable explanation for his or her absence. The commissioner found that the third respondent had breached the applicant’s rule but found that she was justified to do so. The explanation tendered for her absence was to attend a sangoma course to appease her ancestors. This is not one of those cases where an employer did not know about the whereabouts of the employee. It was prepared to give her a week off as unpaid leave. The commissioner found that the explanation that she tendered was reasonable. This Court cannot second guess the commissioner’s findings.

This Court is sitting as a review court and not as an appeal court. The test in review applications is whether the decision arrived at by the commissioner is one that no other reasonable decision maker would not have arrived at. The applicant has relied on grounds of review that are no longer part of our law.

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Originally posted 2013-10-13 10:05:03. Republished by Blog Post Promoter