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Tradition in the workplace

Calling to become a Sangoma

Jan du Toit

Ever wondered what the implications would be if the legislature deemed it necessary to include traditions in labour legislation? One can just imagine the chaos that would ensue. Looking at only the 11 official languages employers will have to accommodate 11 different cultures including the applicable customs, believes and rituals.

It is therefore widely accepted that an employee’s culture has no place in the workplace since the law makers did not deem it necessary to include specific cultures in legislation. Having said this, employers must remember that the Labour Relations and Employment Equity Acts are very clear on discrimination against employees based on their race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or their family responsibility. 

The result of a dismissal based on an employee’s religion would most certainly end up in the Labour Court where compensation up to an amount equal to the employee’s salary for a period of 24 months could be awarded in the favour of such an employee. An employer would therefore be within his rights to refuse an employee one month of unpaid leave in order to become a Sangoma, as long as he does not allow a Christian employee one month of unpaid leave to do missionary work somewhere in Africa.

This raises an interesting question, would you as an employer allow an employee one month of unpaid leave in order to become a Sangoma if you can operationally not allow that employee to be absent from work for one month? It must be understood that in terms of the Basic Conditions of Employment Act there may be periods of unpaid leave but the employee does not have an automatic right to claim unpaid leave. If the employee does not have annual leave available or the employer cannot accommodate the employee, then there is nothing in our current labour legislation that would prevent the employer from declining such a request. This is provided that the employer acts consistently in this regard and does not allow the Christian employee unpaid leave during the same period.

In the matter between Kievits Kroon Country Estate (Pty) Ltd v CCMA & others (2010) 19 LC 1.11.38, the employer declined the request of one of its employees for one month’s unpaid leave. Kievits Kroon is a multimillionrandorganisation dealing mostly with conferences and leisure and operates seven days a week. The kitchen opens at six in the morning until midnight and there are three kitchens on the estate. 

The main kitchen can accommodate up to 220 guests and the banquet hall with a separate kitchen can accommodate up to 360 guests. There is also a bistro kitchen which can accommodate 30 guests in the restaurant. From the afore mentioned one can safely say that the employee worked in a high pressure environment where attendance was of utmost importance, especially since she was employed as a chef de partie.

The employee requested one month’s unpaid leave in order to become a Sangoma. In support of her application she submitted a letter from North West Dingaka Association stating as follows:

“This serves to certify that Johannah Mmoledi was seen by me on 13-01-07 and was diagnosed to have a PERMINISIONS OF ANCESTORS [sic].

She under my treatment from 13-01 to 8th July 2007. She will be ready to assume work on 8th 07-2007.

Preparation of graduation ceremony of Johannah Maite Mmoledi

Dear Sir,

I hereby inform you of the graduation of the abovementioned patient. I am asking you to please give her days from the 4th of June to the 8th of July 2007 to complete her initiation school final ceremony to become a traditional healer.

Yours faithfully”

Due to the operational requirements of the employer the application was declined after she refused to accept one week of unpaid leave that was offered as an alternative to a full month. The employer simply could not afford to be without the services of the employee for a month, in addition to her normal annual leave which was already depleted.

Despite not having permission to be absent from work the employee stayed away from work for the period of unpaid leave she applied for. The employee was charged with inter alia absence without a valid reason for 3 days or more and gross insubordination / challenge of employer’s authority. The employee was dismissed and referred the matter to the CCMA as an unfair dismissal. 

At arbitration the employee’s manager maintained that he would have acted in a similar fashion if another employee approached 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, his refusal to grant unpaid leave for a month was based purely on the operational requirements of the company.

The manager further agreed that Sangomas and traditional healers constitute a vital part of the cultural life of Africans but did not agree that attending a traditional ritual was a valid reason for being absent from duty.

He did not agree that a certificate issued by the North West Dingaka Association was a valid medical certificate, there was nothing in the document which suggested that she was ill and he further indicated that he would have accepted a proper medical certificate issued by a medical practitioner if she was indeed ill. According to the manager, attending a ceremony to become a Sangoma does not qualify as sick leave.

It is important to note that the manager was correct in his conclusion that medical certificates from traditional healers are not “valid” medical certificates as described in the Basic Conditions of Employment Act and that the document was in any event not a “medical” certificate.

In support of the manager’s testimony the HR manager testified that the employer’s disciplinary code did not make provision for employees to attend traditional functions. She admitted that the manager told her that the employee had a problem of seeing visions. 

She did not follow up with the employee or anybody about the issue of visions. However, she did not believe that seeing visions were a sickness. In terms of the company’s rules, employees desiring leave for absence whether paid or unpaid should apply for authorisation to their managers stating the reasons thereof and non-compliance constituted serious misconduct. The employer has a grievance procedure in place and the employee did not invoke the procedure to address her grievance if she was not satisfied with her manager’s decisions.

So far it seems as if the employer had sufficient reason to terminate the employment relationship? The dismissed employee testified that she regarded her condition as an illness because she saw visions and to her it was like a calling. If she had not heeded the call to attend the ritual ceremony she could have collapsed and no one would have been able to help her.

The attendance of the ritual ceremony was necessary for her health. Agnes Mamoreroa Masilo North West Dingaka Association testified in support of the employee. She testified that she is a traditional healer who treated the employee when she approached her with the problem concerning visions.

Mamoreroa further testified that that the employee was very ill when she came to her for treatment in January 2007, she could have died or suffered from some serious and mysterious accident or misfortune if she ignored the ancestors and continued to work as instructed by the manager.

The commissioner said in his award that the employee was charged with misconduct for the contravention of the employer’s workplace rules. He said that although it would appear that the employee had contravened various rules, all the charges stemmed from the fact that she was absent from duty for more than three days without leave or permission. The Labour Court correctly pointed out that this was an unfair splitting of the charges. 

The commissioner further stated 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.

At this point the commissioner, according to me, failed to apply his mind to the facts and stepped into the shoes of a spiritual guru and lost all sense of objectivity. He said that it was clear that the parties had conflicting and competing interests. Another issue which appeared clearly from the evidence was that there was a lack of empathy and understanding of cultural diversity in the employer’s workplace. 

Walter, the manager, stated that he acted in the best interest of the employer when he declined to grant her request for unpaid leave. They were short-staffed as some employees had already taken leave, it was a busy period of the year and the business could hardly afford to dispense with the services of the employee under those circumstances. Walter had conceded that she would not have been dismissed, if she had brought a medical certificate issued by a registered medical practitioner.  The commissioner said that it appeared from his evidence that if the employee was indeed ill in the conventional sense he, Walter, would have approved her request for sick leave.

He seemed to have laboured under an erroneous but honest impression that she had a choice whether to undergo training as a Sangoma. This conclusion was drawn from Walter’s evidence when he stated that he would have done the same thing if another employee had come to him to request leave for karate training. According to the employee’s evidence, her illness was more of a spiritual nature than the conventional illnesses that ordinary people are mostly accustomed to.

She stated that she saw visions which no other person could see. She had to be treated for those visions as it was not normal for a person to see visions which no other person could see. It was under those circumstances that she went to a traditional healer who diagnosed her with “perminisions from the ancestors”. Although the word “perminisions” does not exist in the English vocabulary, the traditional healer attempted to explain what she meant by that expression.

The commissioner said that the issue was not whether the employee had a valid medical certificate for her absence; the issue was whether there was any justifiable reason for the employee to disregard the employer’s instructions. The employee had to prove and convince him that her absence from duty was necessitated by circumstances beyond her control to be absolved from blame. According to the commissioner there is a great deal of mystery about the phenomenon of a “calling” and turned to an extract from the Holy Scriptures in order to shed some light on what a calling entails and its effect on the lives of those who were called. 

He said that in the Old Testament there is a story about Prophet Jonah who was called by God and sent to Nineveh. Jonah decided to disregard the calling of God and sailed in a boat to Tarshish. A severe storm hit the ocean and the boat sank. Jonah confessed to the captain of the ship about what he did and he was thrown in the ocean to save the lives of innocent passengers. All the Christians and people subscribing to the Christian faith and religion believe that God calls his servants to the ministry and that those who fail to heed His call will suffer the same fate as Jonah did.

The commissioner said that what was “good for the gender [sic] must be good for the goose also” [sic]. This raises the question as to when absence without permission for a “calling” became good for the goose, or for the gander for that matter. 

The employee believed that she was called by the ancestors to become a Sangoma. According to the commissioner “evidence” was led that the employee could have died if she had continued to work and disregarded her “calling”. It appeared to him that the employee had decided to follow the Sangoma course to save her life and that if an average person values his or her life as more important than anything else, then the employee should not be punished for such misconduct. The commissioner found the dismissal to be substantively unfair and order reinstatement.

The employer approached the Labour Court to review the award on the basis that by making the findings of both fact and of law that are so grossly out of touch with the evidence presented to him, the commissioner not only exceeded his powers but also failed to apply his mind to the matter he was called upon to consider and adjudicate.

Judge Francis ruled:

“The commissioner has in a well reasoned award dealt with why he believed that the dismissal was harsh and why reinstatement was appropriate. The applicant’s (employer) grounds of review are baseless. I am satisfied that the award made by the commissioner is one that a reasonable decision maker would have made.”

The application was dismissed.

In essence this case was about the operational requirements of a business versus the fears of an employee that believed that she would die if she did not answer the “calling” of her ancestors. We agree that under different circumstances the fears of an employee could be used to justify unauthorised absence from work. An example would be an employee that fears for his life and therefore stays away from work because other striking employees threatened him with death if he reported for duty. The fears of the employee are understandable and based on a reality that can be proven. In the Kievits Kroon matter the fears of the employee were based on the beliefs of the employee and not a reality which could objectively be decided upon.

This case will undoubtedly open the proverbial “can of worms” when it comes to dealing with traditions in the workplace. One can just imagine what will happen if a Christian applies for four months unpaid leave to do missionary work, believing that his soul will not be saved if he does not adhere to his “calling”, as the commissioner in detail explained to us.

For more information contact Jan du Toit                                                                                             

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