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View Full Version : Operational requirements v cultural rights and sangoma’s



Sharon
18-11-2011, 12:29
Clearly we need to have very good contracts to avoid this.. covering leave - when it can be taken specifically!

what do we do if someone wants a months unpaid study leave?

build the economy, create jobs, provide employment seems on the light end of the scale..



Johanette Rheeder



In the case of Kievits Kroon Country Estate (Pty) Ltd v CCMA & others[1] the proverbial can of worms was opened by the award of the commissioner. On closer scrutiny however, it is clear that the commissioner ruled on the facts before him, as commissioners should and this review of the labour court should not be seen as a blanket consent to employees to take extended and unauthorised absence from employment. On the other side, employer should respect the cultural beliefs of employees as well.

After five years’ service, the respondent employee applied for a month’s unpaid leave to attend a ritual ceremony which formed part of her training as a sangoma. On behalf of the employer it was testified that the employee approached him and stated that she was attending a traditional healer’s course. She requested to work morning shifts only to attend the course in the afternoon. As the request would affect other chefs in the kitchen, he called a meeting with all the relevant parties and asked them if they had any objection if she was allowed to work morning shifts only. They all agreed that they would not have a problem. The employee agreed that if the need arose, she would still assist during the night shifts.

Everything went smoothly until she approached him again during May and requested to be granted one month’s unpaid leave. He could not agree to her request as they were already short-staffed. It was during a very busy period. He spoke to the human resources manager and because the third respondent did not have enough leave, offered her one week unpaid leave. She did not accept one week and left on 1 June 2007 after her shift. The applicant employee absented herself from work for a month. The applicant was charged, inter alia, with absence from work without permission and insubordination, and dismissed. The applicant claimed that she had had visions for several years, and that a traditional healer had recommended that she attend the ceremony. Her manger maintained that he would act in a similar fashion if another employee was to approach him for leave to do a karate course. He denied that he is a racist and does not have respect for African traditions and customs.



During cross-examination, he said that the employee would not have been dismissed if she had submitted a medical certificate. He did not agree that attending a traditional ritual was a valid reason for being absent from duty, being ill was but not attending sangoma training. The HR manager testified that she did not qualify for leave and that it was a busy time of the year. She offered her one week but not a month. The employee declined it. Both Walter and Dreyer stated that they would not have denied her leave or dismissed her if she had produced a medical certificate from a registered medical practitioner. On behalf of the employee testified the sangoma she was seeing, who explained her visions.

The respondent commissioner accepted that the employee believed that she would have died had she not attended the ceremony, and that dismissal was accordingly inappropriate because the employee’s absence was due to circumstances beyond her control. The applicant was ordered to reinstate her from the date of the award.



The arbitration award:



The traditional healer testified that the employee was very ill when she came to her for treatment. She stated further that she would have died or suffered a serious misfortune if she had ignored her ancestor’s calling. The third respondent testified that should she have ignored her ancestor’s calling and continued to work, she would have collapsed and no one would have been able to help her.



The commissioner said that employees have a fundamental duty to render service and their employers have a commensurate right to expect them to do so. A basic element of this duty is that employees are expected to be at their workplaces during working hours, unless they have an adequate reason to be absent. According to John Grogan, Dismissal, Discrimination & Unfair Labour Practices: Juta & Co Ltd (2005) at 239, an explanation for an absence would be adequate if employees could prove that the absence was beyond their control.



Another issue which appeared clearly from the evidence was that there was a lack of empathy and understanding of cultural diversity in the applicant’s workplace. The employer did not understand her calling and did not grant her leave as it did not deem her to be ill. The employer acted in the interest of the company and the letter of the sangoma was of no consequence. If she was ill, she would not have been dismissed. The issue was whether there was any justifiable reason for the third respondent to disregard the applicant’s instructions. The third respondent had to prove and convince him that her absence from duty was necessitated by circumstances beyond her control to be absolved from blame.



The commissioner equated her visions to the situation of Jona who ignored the call of God. The commissioner said that what was good for the gender must be good for the goose also. The third respondent believed that she was called by the ancestors to become a sangoma. Evidence was led that she should have died if she had continued to work and disregarded her calling. It appears to him that the third respondent had decided to follow the sangoma course to save her life. She must have genuinely believed that if she did not do so, she would die or suffer a serious misfortune. The commissioner said that the inescapable conclusion which he arrived at, was that the third respondent’s absence from duty was due to circumstances beyond her control. She was justified to disregard the applicant’s instructions and attend the sangoma course and reinstated herself.



The labour court, in the review had to decide whether he acted as a reasonable decision maker and did not make any award on the question as to whether she was justified in her absence. It merely considered the conduct of the commissioner.



The court noted that 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.



The court confirmed that 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. 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.



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.



For more information contact Johanette Rheeder Attorneys

JudithNkwe
18-11-2011, 15:04
What a convoluted judgement! There appears to have been a breakdown in communication here. Just disappearing for a month without giving a real explanation is desertion

Nikki
18-11-2011, 16:27
Firstly, the employer is not obliged to grant unpaid leave, it can be denied. my take on this is that the employer was 'seen' to be sympathetic and then they no longer were - alot of this is about consistency. Perhaps when her 'calling' was made known she should have answered it and removed herself right out of her job!

What a load of nonsense! Can you imagine if this was a white person who had heeded his/her calling to take on religious studies - they would have been dismissed and that would have been the end of it!

Sharon
18-11-2011, 16:30
What a convoluted judgement! There appears to have been a breakdown in communication here. Just disappearing for a month without giving a real explanation is desertion

One of the points was that they did know where she was.... she did NOT desert


So as long as you tell the boss you're going to the beach for a month... it's cool!

It seems crazy... almost as if the racial card was the deciding factor? nah! never... silly me
(sorry, I think the devil made me type that - I couldn't help it)

Nikki
18-11-2011, 16:43
You are right about one thing though Sharon - that is the need to have a proper Leave Policy in place. Said Policy should be very clear on the 'how to' apply for the various leave applications as well as very clear on what happens if an employee does not come to work or is AWOL (irrespective of whether you know where they are or not!) Most companies I know don't have this in place and then the whole thing runs on emotion and that's never a good thing.

CrazyCow
19-11-2011, 03:06
The commissioner said that what was good for the gender must be good for the goose also. When did this one creep into English? :D

AndriesH
19-11-2011, 09:08
Think Cape Flats....

Sharon
19-11-2011, 17:00
It may also be a typo... :)

I, on behalf of myself, reject it!! from my English language!

Tim
19-11-2011, 17:05
WTF?

Are we still in the dark ages?

When are we gonna grow up and get with the program?

<shakes head in total disbelief>

All this superstitious crap makes me want to vomit.

And that we give it credence on the basis of culture or political correctness just adds insult to injury.

Hellooo? Anyone want to join the rest of us in the 21st century?

Tim

CrazyCow
20-11-2011, 03:25
Its not only in Africa.

Lots of that kind of superstition and fear around here too, but they're called traditions.

The number 4, I am told, sounds like the word for death in Chinese, so buildings don't have floors ending in a 4. I.e. no floor 4, 14 24 etc.

An article in a recent newspaper spoke of people being brave enough to have a 4 in their vehicle number plate!!

Certain years are considered lucky, so everyone wants their events during that time - marriages births etc.
11/11/11 was considered such an "auspicious" occasion. So lots of marriages on that day.

Very interesting.

Nikki
20-11-2011, 06:02
And even here in my complex - not one of the 7 black families living here are from SA, they are from Ivory Coast and Nigeria and Senegal etc, yet they all still fear the tokolosh!

Works well for me! (evil grin)

Tim
20-11-2011, 12:31
Why do we humans voluntarily submit to this bondage?

Why do we want to limit ourselves so severely and restrict our own freedom?

I just don't get it.

Tim

Nikki
20-11-2011, 12:45
Cause we are afraid of the unknown, so we make shit up to scare ourselves even more!

Tim
21-11-2011, 12:33
Cause we are afraid of the unknown, so we make shit up to scare ourselves even more!

Bullseye!

TIm

JudithNkwe
21-11-2011, 21:56
Isn't the human race wonderful? I was asked yesterday if I went to church and replied no as I am an atheist. Today I read an article in the Daily Maverick on the US Anti-Abortion Movement and its terrorism. A comment on the article listed many of the biblical references to "god's" injunctions to kill babies and pregnant women stating that on this evidence "god" is not against abortion and does not see life as sacred!

Sounds clear to me!

Nikki
22-11-2011, 05:51
Isn't the human race wonderful? I was asked yesterday if I went to church and replied no as I am an atheist. Today I read an article in the Daily Maverick on the US Anti-Abortion Movement and its terrorism. A comment on the article listed many of the biblical references to "god's" injunctions to kill babies and pregnant women stating that on this evidence "god" is not against abortion and does not see life as sacred!

Sounds clear to me!

Very clear - provided of course that we believe everything that we read!