The facts and the findings
The employee in question had asked for a month’s unpaid leave in order to undergo training as a sangoma, which she considered vital to her well-being (to appease her ancestors and “to avoid incurring their wrath”). To this end she produced a traditional healer’s certificate to the effect that she “…..was diagnosed to have a PERMINISIONS OF ANCESTORS” and needed unpaid leave “to complete her initiation school final ceremony to become a traditional healer”.
Her employer offered her only one week’s unpaid leave, which she declined. She then went absent against her employer’s instructions, and on her return she was dismissed for misconduct after a disciplinary enquiry. She challenged her dismissal in the CCMA, which held it to be substantively unfair and ordered the employee’s reinstatement, finding that her “absence from duty was due to circumstances beyond her control” and that the employer’s refusal to grant her unpaid leave had put her life at risk. The CCMA then ordered that she should be re – appointed.
The Labour Court upheld the CCMA’s award on review, and the Labour Appeal Court confirmed this decision, commenting on the diversity of cultures, traditions and beliefs in our society and the need for “reasonable accommodation of each other to ensure harmony and to achieve a united society”.
So, where does that leave you?
- Firstly, distinguish between requests for paid sick leave and for unpaid leave.
- Where paid sick leave is applied for: Currently traditional healers cannot issue valid Basic Conditions of Employment Act (BCEA) ‘medical certificates’ (with the exception of several sectoral agreements specifically allowing them). That will change – once traditional healers are registered with the proposed “Traditional Health Practitioners Council”, their medical certificates will be as valid as those issued by registered doctors, psychologists, dentists, and “Allied Health” professionals.
- Where unpaid leave is applied for: The employee in this case had not asked for paid sick leave nor had she claimed to be “sick or ill in the conventional sense”. Consequently, the question wasn’t whether or not the ‘sick note’ amounted to a valid ‘medical certificate’. Rather, the question was whether or not the employee’s unauthorised and unpaid absence from work was, in all the circumstances of the case, justified. It was in this context that the ‘sick note’ clearly carried a lot of weight with both the CCMA and with the courts that reviewed its findings.
- Employers: This is not the first warning from our courts to the effect that, whether dealing with a leave application or with any other workplace issue, you would be well advised to make every reasonable effort to accommodate the bona fide cultural and religious beliefs and practices of all employees – wherever, that is, doing so does not impose an “unreasonable burden” on you.
Whether you are an employer or employee there are some fine distinctions to make here – take advice in doubt.
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