Should an employer try to accommodate an employee’s request for leave of absence to be trained as a traditional healer, where the period of absence may be as long as one month or longer? Or to grant leave in excess of the family responsibility leave available to an employee so that she can fulfil her obligation to arrange for a family member’s funeral?
These questions were at issue in two recent cases. In Kieviets Kroon Country Estate (Pty) Ltd v CCMA the employee, employed as a pastry chef, sought permission from her employer to be granted a month’s unpaid leave to attend a ritual ceremony for sangoma training that she had been undergoing. She submitted a certificate issued by her traditional healer and other supporting documents but her request was turned down. She then went on leave without permission. She was subsequently dismissed for being absent without leave.
The CCMA found her dismissal to have been substantively unfair, holding that the employer ought to have shown greater sensitivity towards the employee, who seriously believed that ignoring the call to be trained as a sangoma could bring harm to her, even death. She found herself in a situation of necessity where the only recourse was to break the employer’s rule to save her life. Furthermore, the evidence also indicated that the employer would not have suffered irreparable harm arising from her absence.
The inescapable conclusion which the commissioner arrived at was that the employee’s absence from duty was due to circumstances beyond her control, that she was justified to disregard the employer’s instructions and attend the sangoma course and that the employer’s instructions and refusal to grant her unpaid leave was unreasonable as the consequences thereof would have been to place her life at risk. The employee’s dismissal was therefore substantively unfair and she was entitled to reinstatement.
On review, the Labour Court remarked as follows:
‘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 ultimate question that needs to be decided is whether [her] 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 court found that the arbitrator’s award was reasonable and accordingly dismissed the employer’s application for the award to be set aside.

In Fairy Tales Boutique t/a baby City Centurion v CCMA & others an employee had failed to attend a scheduled stock take to attend the funeral of her mother in law. The employee had been taking care of her mother in law, who had been ill for some time. At the time of her dismissal for gross insubordination (she had been instructed to assist with a stock take but failed to arrive), the employee had already exhausted her family responsibility leave.

The CCMA commissioner held that the employee was entitled to disobey the employer’s instruction where ‘there was a family emergency and the applicant was needed, according to her custom, to make the myriad of arrangements associated with an African funeral.’ She found further that the employer had not been unduly inconvenienced by the employee’s failure to attend the stock-taking that weekend as it was common practice that employees from other stores would be brought in to assist. Indeed the applicant’s evidence was that 12 employees had been brought in from other stores to assist. The employer had ample time to make such alternative arrangements. The commissioner found that the dismissal had been unfair and demonstrated ‘a callous disregard for the cultural practices of black employees and the family circumstances of the applicant.’ On review the Labour Court upheld the decision of the CCMA commissioner that the employee should be reinstated.

What are the lessons emerging from these cases?

· Employers must show sensitivity to and understanding of the cultural practices of employees.

· Absence from work to answer a calling from ancestors may in appropriate circumstances constitute a justifiable reason for absence from work.

· Even if an employee has exhausted her family responsibility leave, the employer should carefully consider requests for leave in circumstances where the taking of leave would not unduly prejudice the employer but would run counter to the employee’s customs and broader family responsibilities.

Barney Jordaan of Maserumule Consulting for www.labourwise.co.za

Labourwise is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or info@labourwise.co.za