By Talita Laubscher and Monique Jefferson
In the case of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others [2014] 3 BLLR 207 (SCA) the Supreme Court of Appeal (SCA) was asked to consider the Labour Court’s finding that the employee’s dismissal for failing to obey an instruction to resume work was substantively unfair. The employee had remained off work in order to complete her training as a traditional healer. The employer’s version was that the employee had wilfully been absent from work after the employer had refused to grant her leave for purposes unrelated to her employment. The employee’s case, on the other hand, was that her absence was for reasons beyond her control as in terms of her culture she had a calling from her ancestors to train as a traditional healer and she genuinely believed that she would suffer misfortune if she returned to work and did not complete her course.
When the employee first pursued her calling to be a traditional healer she requested that the employer accommodate her by not requiring her to work the afternoon shift so that she could attend her training. This request was accommodated. Later in the year the employee again approached the employer and requested that she be granted about five weeks’ unpaid leave to attend further training as a traditional healer. Given the fact that the employee had exhausted her annual leave, sick leave and compassionate leave entitlement and the fact that the employer was short staffed and would not be able to provide a proper service to its guests without her, the employee was granted only one week’s unpaid leave and was instructed to return to work immediately thereafter.
Before going on unpaid leave the employee left an envelope on her manager’s desk containing two notes from her traditional healer. The first note requested that the employee be excused from work for approximately five weeks to allow her to complete her traditional healer’s course. The other note was a certificate stating that the employee had been diagnosed as having ‘perminisions [sic] of ancestors’. The certificate recorded that the employee would only resume work on 8 July 2007, approximately five weeks later. The day before the employee was required to return to work she phoned her employer to check that they had received the documents contained in the envelope. She was advised that her application for leave had been rejected and that the employer would institute disciplinary action in the event that she did not report for duty. The employee did not report for duty and was charged with, inter alia, insubordination and being absent from work for more than three days without permission. At the disciplinary inquiry, the employee contended that she was unable to return to work as she was seriously ill in that she was ‘disturbed in her spirits’. This was confirmed by the letter from her traditional healer and thus the employee alleged that her absence should be treated as sick leave. She argued that the employer should attach the same weight to the letter as it would to a medical certificate. The employer refused and maintained that the employee had committed misconduct by absconding from work to attend a course that was unrelated to her employment in contravention of the employer’s policies and procedures. This was particularly because the letter from the traditional healer was not a medical certificate issued and signed by a medical practitioner as contemplated in the Basic Conditions of Employment Act 75 of 1997. The employee was found guilty of the charges against her and dismissed.
The employee referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA). The employer argued, at the CCMA, that the employee had been denied unpaid leave as it would have been short staffed and unable to provide a proper service to its guests in the event that the employee had been granted five weeks’ unpaid leave. The employer contended that the fact that the employee wanted to attend a traditional healer’s course was irrelevant to its decision, which was based purely on operational requirements. The employee argued that she was of the view that she was seriously ill as she saw visions of her ancestors and was required to complete her training as a traditional healer. She believed that if she did not attend the training her health would have seriously deteriorated. The traditional healer testified at the CCMA that if the employee did not attend the training, death might have befallen her. This evidence was not challenged by the employer. However, the employer stated that it would have only treated the absence as sick leave in the event that the employee had submitted a medical certificate from a medical practitioner. The commissioner found that the employer did not understand the employee’s cultural beliefs and that if such beliefs had been properly understood then the employer would have considered the employee’s condition as an illness and granted her sick leave. The commissioner further found that the employee had no option but to disregard her employer’s instructions to report to work as she genuinely believed that her health would deteriorate if she did not adhere to her ancestors’ calling to train as a traditional healer. The commissioner concluded that the employee’s absence was due to circumstances beyond her control and that her dismissal was substantively unfair.
When the commissioner’s decision was taken on review, the Labour Court found that the award was well reasoned and accordingly dismissed the review application. Similarly, the Labour Appeal Court (LAC) dismissed the appeal and found that the commissioner had properly applied his mind to the facts.
On appeal to the SCA the employer argued that the commissioner committed a gross irregularity in terms of s 145(2)(a)(ii) of the Labour Relations Act 66 of 1995 in that he misconceived the true nature of the inquiry. In this regard, it was alleged that the commissioner should have considered the fact that the employee had no contractual entitlement to unpaid leave. Furthermore, the operational requirements of the employer could not justify a period of absence of five weeks. It was also alleged that the commissioner was required to consider the fact that the employee had been insubordinate in refusing to report for duty. Thus, the employer alleged that if the commissioner had considered whether the employer applied the correct principles applicable to a request for unpaid leave as opposed to determining whether the employee was justified in not reporting for duty, then he would have found that the dismissal was substantively fair.
Cachalia JA found that where an employee is dismissed for being absent without authorisation, and even in direct contravention of an employer’s instructions, a court may intervene if the employee’s failure to obey an instruction to report for duty is reasonable and justified. The commissioner was, therefore, entitled to determine whether there was a justifiable reason for the employee failing to obey the instruction. It was significant that the employer stated that the employee would not have been dismissed if she had submitted a medical certificate from a medical practitioner. Such absence would have been tolerated despite the employer’s operational requirements. The request for unpaid leave was thus rejected purely on the basis that it was supported by the traditional healer’s note as proof of incapacity.
The employer seemed to understand the cultural significance of training to become a traditional healer as it had accommodated the employee on two occasions to enable her to carry out her training. However, the employer did not accept that the employee was sick in the absence of a medical certificate from a registered medical practitioner. Cachalia JA considered the fact that the World Health Organisation found that 80% of South Africans make use of traditional medicine and that traditional medicine considers the spiritual origin of illness, which includes communication with the ancestors. It was noted that while the courts are equipped to deal with conventional medicine, they have not been equipped to deal with religious doctrine and cultural practices. Thus, Cachalia JA found that it is not up to the courts to decide the acceptability, logic, consistency or comprehensibility of the belief – the courts should only be concerned with the sincerity of a person’s belief and whether or not there is an ulterior motive for invoking the belief. Cachalia JA pointed out that there may be operational requirements that justify terminating an employment relationship where an employee is on extended absence due to ill health but this was not the process followed in these circumstances.
Cachalia JA (with Brand JA, Leach JA, Willis JJA and Zondi AJA concurring) concluded that the LAC’s decision was correct and dismissed the appeal.
Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.
Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.
This article was first published in De Rebus in 2014 (May) DR 60.
