A Labour Appeal Court judgment caused quite a stir in addressing leave applications to attend Sangoma training, with many commentators erroneously reporting that the judgment confirmed that it created new law compelling employer’s to accept unregistered Sangoma, or traditional healer, certificates, for BCEA sick leave purposes.
The case in question was that of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & 2 others (JA78/10).
The employee was a Chef. She approached her superior and informed him that she was attending a ‘traditional healer’s course’, and for this reason, requested that she be permitted to work morning shifts only to enable her to attend the course without adversely affecting her employment obligations.
It was agreed that the employee’s request could be accommodated, and the employee commenced working morning shifts.
The employee re-approached her superior, informing him that she was about to complete her Sangoma training course, and now needed to complete the course full time for the final month. She therefore requested unpaid leave for one month to do so.
The employer granted the employee permission to use her accumulated annual leave; on closer examination, it was established that she had no accumulated annual leave. It was therefore decided to offer her one week’s unpaid leave; this was insufficient leave as the employee was required to attend the final one month of the course on a full time basis.
The employee then submitted correspondence from her Traditional Healer Association requesting to give her permission to attend her final month of full time training, as well as her graduation ceremony, and advising that she had “permissions of ancestors”. The employee duly absented herself for the month in question.’
On her return, the employee was subjected to a disciplinary hearing, and charged with absence without leave and “gross insubordination/challenge of employer’s authority”.
Importantly, the disciplinary hearing chairperson concluded that the employee had no medical certificate from a medical practitioner as required by the Basic Conditions of Employment Act.
The employee was found guilty of all allegations, and dismissed.
The employer was of the view that it would have done the same thing if the employee had requested unpaid leave for a karate course.
The CCMA held that it was clear that the parties had conflicting interests, and that the employer had acted with a lack of empathy and understanding of cultural diversity in the workplace, continuing that the employee, faced with two evils, had chosen the lesser evil. It was also noted that the employer had not suffered irreparable harm, and that the employee’s absence was beyond her control.
The Courts agreed with this, noting importantly that the employee was not in fact seeking sick leave.
In conclusion, the judgment noted that “what is required is reasonable accommodation of each other to ensure harmony and to achieve a united society”.
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