10 December 2010 by

Clash of cultures - non traditional reasons for absenteeism

The unauthorised absence of an employee from work on its own will typically not lead to the dismissal of an employee. An employer should investigate the reason why such an employee was absent. However, what does an employer do when the reason for an employee's unauthorised absence is as a result of an employee having to attend a ritual ceremony so that she can become a Sangoma.

This issue received attention in the recent judgment of the Labour Court in Kievits Kroon Country Estates (Pty) Ltd v CCMA and others (Unreported JR1856/08). The judgment should be carefully considered by employers faced with employees absent due to religious or cultural reasons.

The employee sought permission from employer to be granted unpaid leave to attend a ritual ceremony for her Sangoma training. She submitted a certificate issue by her traditional healer and other supporting documents but her request was turned down. The employee then went on leave without permission. She was charged with misconduct, for amongst others, insubordination and absence without leave and was subsequently dismissed.

At arbitration, the Commission for Conciliation, Mediation and Arbitration (the CCMA) ordered the employer to reinstate the employee with full back-pay. The employer took the arbitration award on review to the Labour Court.

The employer disputed that the employee's explanation of her absence from work was justifiable. During the arbitration hearing, the employee contended that she had visions and had believed that her ancestors were calling her to become a Sangoma. The employee further believed that if she did not heed the calling to become a Sangoma she would become ill. The employer contended that if the employee produced a ''valid medical certificate'' they would have granted her leave. However, they did not view the documents issued by the traditional healer as valid.

The CCMA held that there ''appeared clearly from the evidence was that there was a lack of empathy and understanding of cultural diversity in the applicant's workplace.'' The arbitrator found that although the employee had breached the employer's rules she was found to be justified in doing so.

In deciding the review, Judge Francis held that the ultimate question that needs to be decided is whether the employee's absence from work was justifiable. In this regard, he sought to ascertain whether the employee's non-attendance at work as a result the calling by her ancestors for her to become a Sangoma was justifiable. Judge Francis dismissed the review application after considering the arbitrator's award. The Court stated:-

"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 cost and on the other hand an employee who had visions and had believed that her ancestors were calling her to become a Sangoma."

The judgment underscores the fact that we live a diverse country. Employers are expected to show appreciation of the vast spread of cultural and religious beliefs of staff when balancing the needs of the employees with the needs of the business. However, it does follow that employees may now stay away from work and merely subsequently claim religious or cultural reasons for their absence. Employees should still apply for permission to be absent from work, but employers should show consideration of all relevant factors when refusing such requests.

Aadil Patel, Director
Employment Law

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