Kievits Kroon Country Estate v Mmoledi & others (JA 78/10) [2012] ZALAC 22 (24 July 2012)

Principle:

(1)   Where an employee requests unpaid time off to attend a course based on cultural or traditional beliefs, section 23 of the BCEA relating to sick leave certificates does not apply.

(2)   Our society is characterised by a diversity of cultures, traditions and beliefs. What is required is reasonable accommodation of each other to ensure harmony and to achieve a united society. A paradigm shift is necessary and one must appreciate the kind of society we live in.

Facts:

Johanna Mmoledi was employed by Kievits Kroon Country Estate, a conference and leisure resort, from June 1999. At the time of her dismissal, she was employed as a specialist chef. During 2007, she started getting visions and consulted a sangoma, who told her that she had to appease her ancestors by becoming a sangoma. She approached her employer and she was allowed to work morning shifts to attend the sangoma training course in the afternoons. She then requested a month's unpaid leave to complete the training course. The employer was only prepared to give her a week's unpaid leave, as they were short staffed and it was a busy period of the year. There was some indication that if she had leave due to her, this may have been granted.

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 left a traditional healer's certificates on the manager's desk, which stated that she had "perminisions of ancestors" and requested the month off to complete her training. The employer refused to accept the certificates and dismissed her due to her absence. The employer advised that if she had presented a medical certificate in accordance with the BCEA, it would not have dismissed her.

Johanna Mmoledi challenged her dismissal. At arbitration, the traditional healer gave evidence that Johanna was very ill when she came to her for treatment and would have died or suffered a serious misfortune if she had ignored the ancestors' calling and continued working. She would have collapsed and no one would have been able to help her. The employer's witnesses gave evidence that they could not afford to dispense with her services for such a long period.

The CCMA commissioner stated 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 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 commissioner 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 accordingly found to be unfair, and she was reinstated although not retrospectively.

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. This was then taken on appeal to the LAC.

The LAC commented that the emphasis in this case was wrongly placed on the fact that the traditional healer's certificate did not constitute a valid certificate under section 23 of the BCEA, and disputed that the employee had claimed to be 'sick or ill in the conventional sense'. Her case was that, based on her cultural or traditional beliefs, she was in a 'condition' that required her to answer the calling of her ancestors and be trained as a sangoma.

The LAC commented that the purpose of section 23 of the BCEA was to provide for sick leave payments. In this case the employee was not seeking paid sick leave, having only asked for unpaid leave, and concluded that "section 23 of the BCEA therefore finds no application on the issue in this case." Specifically, the LAC found no basis for the contention that the arbitrator's award had elevated the role of traditional healers to that of medical practitioners.

Having dismissed the application of section 23 of the BCEA, the LAC made a b statement about the need for parties to acknowledge and respect diversity at the workplace, and took exception to the employer stating that it treated the situation in the same way as it would have done if the employee had requested unpaid leave for a karate course.

The LAC listed the factors to be considered in assessing the fairness of a dismissal for absenteeism, namely the employee's work record, the reason for the absence, and the employer's treatment of this misconduct in the past. The court commented that this was not one of those cases in which the employer did not know where the employee was, and that the Sidumo review test required the LAC to focus on "whether the result of the award falls within a range of reasonable results and not whether it is in fact the correct one." On this basis, the LAC rejected the employer's appeal against the LC judgment.

Extract from the judgment:

Analysis:

[22]   It is unfortunate that much emphasis was placed on the fact that the employee claimed to be sick and that the certificate from her traditional healer did not constitute a valid certificate as required by section 23 of the BCEA. It was also contended at length that no acceptable medical evidence was presented to show that the employee was ill.

[23]   It is not my understanding of the facts of this case that the employee's case was that she was sick or ill in the conventional sense. Her case was that, based on her cultural and or traditional belief she was in a 'condition' and upon consultation with those that she believed to be in a position to assist her, being a traditional healer, informed her that she must undergo some sessions that would qualify her to be a sangoma as she had a calling from her ancestors. This conclusion is evident from the conduct of the parties when the issue started. The employee was accommodated without any question whether she was sick in the conventional sense. No medical evidence was required to prove that she was indeed sick. Her condition or what she claimed to have been going through her was accepted as such without questions.

[24]   The problem seems to have started when the employee required a full month to conclude her sangoma sessions. It is only then that when it was found that she did not have sufficient leave days to take for a full month to comply with her request and when she found a week of absence offered to accommodate her to be insufficient, that the issue of illness and medical proof came to the fore. The appellant then took the view that she could only be accommodated if she produced a "medical certificate" as proof of her "medical condition". On the other hand, the employee, in an attempt to comply with the requirements, obtained a certificate from the person who was in charge of treating her "condition".

[25]   Section 23 of the BCEA provides, inter alia, that an employer is exempt from paying an employee on sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight week period and fails to produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury, when requested by the employer to produce such a certificate. In this case, the employee was not seeking any remuneration for the period when she would be away from work due to ill health. The common cause fact is that she requested to be accommodated by being given a month's unpaid leave to complete a process that she had already started. Section 23 of the BCEA, therefore, finds no application on the issue in this case. Similarly, the argument that by enacting section 23 of the BCEA the legislature in express terms opted for standards in line with Western standards as opposed to African culture is misplaced as well. I am as a result unable to find, as we are urged to do, that the commissioner usurped the function of the legislature by elevating the role of traditional healers to that of medical practitioners.

[26]   It was contended further that the effect of the commissioner's findings and award is to open the floodgates to 'malpractices that operate towards turning the work environment into total disarray, contrary to the latter and spirit of labour legislation'. It would be disingenuous of anybody to deny that our society is characterised by a diversity of cultures, traditions and beliefs. That being the case, there will always be instances where these diverse cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception. The Constitution of the country itself recognises these rights and practices. It must be recognised that some of these cultural beliefs and practices are bly held by those who subscribe in them and regard them as part of their lives. Those who do not subscribe to the others' cultural beliefs should not trivialise them by, for example equating them to a karate course. What is required is reasonable accommodation of each other to ensure harmony and to achieve a united society. A good example of accommodation was demonstrated by Walter when the respondent first approached him about his challenge. Walter correctly involved other staff members and they all found a common ground to accommodate the employee. The fact that the appellant's attorney does not believe in the authenticity of the culture and that no credible and expert evidence was presented to prove that the respondent was ill is, in my view, subjective and irrelevant. A paradigm shift is necessary and one must appreciate the kind of society we live in. Accommodating one another is nothing else but "botho" or "Ubuntu" which is part of our heritage as a society.

[27]   Regarding the opening of the floodgates, I can do no better than to refer to what Langa CJ said in MEC for Education, Kwazulu-Natal and Others v Pillay,

'The other argument raised by the school took the form of a 'parade of horribles' or slippery slope scenario that the necessary consequence of a judgment in favour of Ms Pillay is that many more learners will come to school with dreadlocks, body piercings, tattoos and loincloths. This argument has no merit. Firstly, this judgment applies only to bona fide religious and cultural practices. It says little about other forms of expression. The possibility for abuse should not affect the rights of those who hold sincere beliefs. Secondly, if there are other learners who hitherto were afraid to express their religions or cultures and who will now be encouraged to do so, that is something to be celebrated, not feared. As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a 'parade of horribles' but a pageant of diversity which will enrich our schools and in turn our country. Thirdly, acceptance of one practice does not require the school to permit all practices. If accommodating a particular practice would impose an unreasonable burden on the school, it may refuse to permit it.' (References omitted).

These authoritative remarks are equally relevant in this case. It must be left to employers and their employees to develop systems in their workplaces when confronted with these challenges.

[28]   In my view, the decision reached by the commissioner on the facts is not the one that a reasonable decision maker could not reach. Her conclusions are supported by reasons. I am not persuaded that a different approach in the reasoning process by the commissioner could have resulted in a different outcome, regard being had to the grounds of review and the submissions on behalf of the appellant. I am satisfied that the commissioner was alive to the issues in this matter and properly applied her mind to the material before her. Another commissioner may as well have arrived at a different conclusion. However, the matter was not on appeal but on review and the distinction between the two must be recognised. The appeal should therefore not succeed.

[29]   What remains to be decided is the issue of costs. I am persuaded by the submission on behalf of the appellant that this is a matter where costs should not follow the result. The issue raised in this matter is novel and the appellant did not act unreasonably in approaching this court on appeal. It would therefore be in accordance with the requirements of the law and fairness that there be no order as to costs.

[30]   In the result, the following order is made:

  1. The appeal is dismissed.
  2. There is no order as to costs.