Kievits Kroon Country Estate (Pty) Ltd v CCMA & others (LC Case NO: JR1856/08, judgment date: 1 October 2010)

Principle:

Where an employee, after giving adequate notice to the employer of the circumstances and reasons, finds that it is necessary (to the point that it is beyond control) to take unpaid leave for a period of time because of religious or cultural beliefs, it may be unreasonable to dismiss the employee.

Facts:

An employee of 8 year’s service was employed as chef de partie.  The employer is a multi-million rand organisation dealing mostly with conferences and leisure and operates seven days a week.  The kitchen opens at six in the morning until midnight.  

The employee started getting visions.  She consulted a sangoma who told her that she had to appease her ancestors by becoming a sangoma.  She approached the employer and informed them about her visions.  She was allowed to work morning shifts to attend the training course to become a sangoma in the afternoons.  She then requested a month’s unpaid leave to complete her training course to qualify as a sangoma.  The employer was prepared to give her a week’s unpaid leave.  They were short staffed as some employees had already taken leave.  It was a busy period of the year and the business could not afford to dispense with the services of the employee under those circumstances.  The one week offered was not enough and she decided to attend the training course despite the refusal to grant her unpaid leave.  Before she went on unpaid leave, she handed in a traditional healer’s certificate stating that the she had “premonitions”.   The employer refused to accept the certificate and contended that she was not ‘sick’.  It demanded a doctor’s certificate indicating that she was ill and if she presented such a certificate, it would not have dismissed her from employment.

The question in this case was whether the employee’s absence from work was justifiable.  The CCMA commissioner recognised that the employee was faced with a difficult choice.  It was either that she heeded the calling of her ancestors or obeyed the rules of the employer and thereafter face the wrath of her ancestors.  She had decided to obey the calling of her ancestors and to face the wrath of her employer. The CCMA commissioner held that she found herself in a situation of necessity where the only recourse was to break the employer’s rule to save her life; her absence from duty was due to circumstances beyond her control.  The CCMA said she was justified in disregarding the employer’s instructions and attending the sangoma course.  The refusal to grant her unpaid leave was unreasonable as the consequences thereof would have been to place her life at risk.  Her dismissal was unfair

The Labour Court, applying the Sidumo review test of whether the decision arrived at by the commissioner is one that a reasonable decision maker could not reach, found that the decision was reasonable and dismissed the review application.

Extract from the judgment:

22.   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.

23.   The third respondent started working for the applicant in 1999.  In 2007 she started getting visions to become a sangoma.  She consulted a sangoma who told her that she had to appease her ancestors by becoming a sangoma.  She approached the applicant in February 2007 and informed them about her visions.  She was allowed to work morning shifts to attend the training course to become a sangoma in the afternoons.  In May 2007 she requested to be given a month’s unpaid leave to complete her sangoma training course to qualify as a sangoma.  The applicant was prepared to give her a week’s unpaid leave.  This was not enough for the third respondent and she decided to attend the training course despite the applicant’s refusal to grant her unpaid leave.  Before she went on unpaid leave, she handed a traditional healer’s certificate dated 31 May 2007 stating that the third respondent had “premonitions”.   The applicant refused to accept the said certificate and contended that she was not sick.  It demanded a doctor’s certificate indicating that she was ill and if she presented such a certificate, it would not have dismissed her from employment.

24.   The commissioner correctly found that the charges stem from the fact that the third respondent was absent from duty for more than three days without leave or permission.   The other charges that she was charged with are therefore not material and are in any event an unfair splitting of charges.  The third respondent worked for the applicant for 18 years when she was dismissed.  At first blush it would appear that the several charges that she was faced with were fair.  On a proper analysis of it, they were unfair.  She should have been charged with being absent without permission for more than 3 days.

25.   The traditional healer has used the term “perminisions”.  According to the Shorter Oxford English Dictionary - sixth edition the word premonition has its origin from the French word ‘premonition’ or late Latin word ‘praemonition’ or from late ‘praemonit’.  It is defined as ‘the action or warning in advance; an advance notification or warning, a presentiment of something bad’.  A ‘premonitor is defined as a person who or thing which gives a forewarning; a premonitory sign or token.  A preminotory is defined as ‘conveying premonition; that warns or notifies in advance’.  It would appear that the word ‘perminition’ used by the traditional healer is similar to the word ‘premonition’.

26.   The third respondent was not sick.  The provisions of the Basic Conditions of Employment Act dealing with sick certificates  do not apply.  She did not apply for sick leave but had applied for unpaid leave to complete her training course to become a sangoma.  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.

27.   It is common cause that the applicant knew that the third respondent was attending a course to become a sangoma.  It had assisted her in the past to attend the said course. Arrangements were made with her to work morning shifts and to attend the course in the afternoons.  This was from February 2007 to May 2007.  The applicant was approached at the end of May 2007 for permission to take one month’s unpaid leave to complete the training course.  The applicant refused although the third respondent had produced a traditional healer certificate that was treated with contempt by the applicant.  The applicant knew what the reasons were for the third respondent’s absence.  The duration of absence was going to be for a month.  She had been working for the applicant for eight years.  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.

28.   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.  The commissioner found that the applicant has in the past accommodated the third respondent by allowing her to work shifts to attended the sangoma course.  She had sought permission to take a month’s unpaid leave.  The applicant was prepared to grant her one week unpaid leave.  The third respondent believed that she had to attend the course and did so.  It was contended on behalf of the applicant that the commissioner had fabricated evidence.  There is no evidence before this court that there was such fabrication.  All that the commissioner said was that the third respondent was faced with a difficult choice.  It was either that she heeded the calling of her ancestors or obeyed the rules of the applicant and thereafter face the wrath of her ancestors.  She had decided to obey the calling of her ancestors and to face the wrath of her employer.

29.   The commissioner has in a well reasoned award dealt with why he believed that the dismissal was harsh and why reinstatement was appropriate.  The applicant’s grounds of review are baseless.   I am satisfied that the award made by the commissioner is one that a reasonable decision maker would have made.  As such the application stands to be dismissed.  I do not believe that this is a matter where costs should follow the result.

30.   In the circumstances I make the following order:

30.1.   The application is dismissed.
31.2.   There is no order as to costs.