Accommodating cultural beliefs, indigenous customs

2011-12-22 00:00

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 grant leave in excess of 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 Commission for Conciliation, Mediation and Arbitration (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.

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 and 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 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 that the employer’s instructions and refusal to grant her unpaid leave was 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 found that the arbitrator’s award was reasonable and 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 stocktaking 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, 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”, adding that the employer had not been unduly inconvenienced by the employee’s absence.

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 consi­der requests for leave in circumstan­ces where taking leave would not unduly prejudice the employer, and would not counter the employee’s customs and broader family responsibilities.

*Professor Barney Jordaan is a director of Maserumule Consulting — and writes on behalf of, an on-line labour relations service.

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