Unauthorised Absence - workplace.co.za

1 Vol. 22 No. 1 August 2012 Page 1 Managing Editor: Le RouxContributing Editor: Carl Editor: by Gavin Brown & AssociatesBox 31380 Tokai 7966 Tel: 021 788 recent decision of the LabourAppeal Court in Kievits KroonCountry Estate (Pty) Ltd vMmoledi and Others (unreported JA78/10 24/7/2010) deals with a case ofunauthorised Absence from work and, inparticular, the important issues of howcultural diversity impacts on theworkplace and how employers shoulddeal with the factsThe employee in this matter wasemployed by the employer as a time earlier than the events thatled to her dismissal, the employee hadapproached the employer s executivechef and informed him that she wasattending a traditional healers course. Sheasked that she be permitted to workmorning shifts only so that she couldattend the training sessions withoutaffecting her employment executive chef convened a meetingwith the other employees in the kitchenwhere the employee worked andcanvassed their views.

2 They had noUnauthorised Absence :objection to this arrangement and, as aresult, her request was agreed to,apparently on the basis that she would,where possible, assist with night time later she again approachedthe executive chef and informed himthat she was about to complete hercourse and that she was required toattend the course on a full-time basisfor a month. She requested that she begranted unpaid leave. The executivechef consulted the employer s humanresources manager. They wereprepared to accommodate theemployee by permitting her to utilise herleave days. However, she did not haveany accumulated leave and they thenoffered her one week s unpaid was insufficient for her tocomplete the course and she then failedto report for work for the duration ofthe course. Before absenting herself,she left two letters on the humanresources manager s first letter was written by thetraditional healer and was akin to aTraditional Healer Certificates and culture clashesby le RouxArbitration awards and prescription: p4 When disciplinary enquires can be held in public: p10 Page 2 Contemporary Labour Law Vol 22 No 1 August 2012certificate issued by a medical practitioner in that itindicated that the employee would be absent from workbecause she was under second stated that - I hereby inform you of the Graduation of theabovementioned Patient.

3 I am asking you toplease give her days from the 4th of June to the8th July 2007 to complete her initiation schoolfinal ceremony to become a traditional healer. When the employee returned to work she wassubjected to a disciplinary enquiry and dismissed. TheChairman of the enquiry rejected both reasons for herabsence. As far as the first reason, namely illness,was concerned, this was rejected on the basis that theemployee did not submit a certificate issued by amedical practitioner as envisaged by the BasicConditions of Employment Act, 75 of 1997 (BCEA).The second, namely that the employee was to undergotraining, was rejected in that he could not accept thatan employee was entitled to undergo training that wasunrelated to the employer s business and would notbenefit the employee challenged the fairness of her dismissalin the CCMA. During the course of the arbitration thetraditional healer gave evidence to the effect that, whenthe employee had commenced treatment with her, shehad been very ill and that she would have died orsuffered serious misfortune if she had ignored herancestor s calling and continued to commissioner pointed out that the parties hadconflicting interests but that there was a lack ofempathy and understanding of cultural diversity in theemployer s workplace and that the dismissal was unfair.

4 An average person values his or her life asmore important than anything else and will doanything to save his or her life. The[respondent] was faced with two evils and shechose the lesser evil. In fact, she found herself ina situation of necessity where the only recoursewas to break the employer s rules in order tosave her life. Necessity knows no law. It is onlythose people who are endowed withextraordinary qualities of courage, bravery andendurance who would risk their lives orsacrifice their lives for others. The applicantseemed to be an average person who did notpossess those supernatural my view it would appear that the applicantwas justified to choose a course that would saveher life. In the normal course of events andaccording to human experience, any personwould have acted like the applicant did to saveher life. A person lives once only and I canhardly imagine any person taking a chance thatwould cause his life.

5 Life ranks higher in thescale of legal values than property and otherthings. Therefore clearly, the life of the[respondent] was more important than theinterests that the [appellant] sought tosafeguard and protect when it declined to grantthe [respondent] leave. The respondent wouldnot have suffered any irreparable harm arisingfrom the Absence of the [respondent].In the light of the exposition above, theinescapable conclusion at which I have arrivedis that the applicant s Absence from duty wasdue to circumstances beyond her control. Inother words, the applicant was justified todisregard the respondent s instructions andattend the sangoma course. The respondent sinstructions and refusal to grant the applicantunpaid leave was unreasonable as theconsequence thereof would have been to placethe life of the applicant at risk. Rather than riskthe wrath of the ancestors, the applicantdecided to act against her employer s wishes.

6 On review, the Labour Court refused to overturn thecommissioner s decision. The employer then appealedto the LAC. The LAC refused to overturn the decisionThe respondent s instructions and refusal to grant the applicantunpaid leave was unreasonable as the consequence thereof wouldhave been to place the life of the applicant at risk. Rather thanrisk the wrath of the ancestors, the applicant decided to act againsther employer s wishes. The CCMA Commissioner in Mmoledi vs Kievis Kroon Country Estate Page 3 Contemporary Labour Law Vol 22 No 1 August 2012on the basis that it was not one that a reasonablecommissioner could not reach. The commissioner sconclusions were supported by reasons, she had beenalive to the issues in the matter and had properly appliedher mind to the material before her. Anothercommissioner may well have arrived at a differentconclusion but this was not an appeal but a review andthe distinction between the two had to be coming to this decision the LAC made variousinteresting points.

7 The LAC stated that it was unfortunate thatemphasis had been placed on the fact thatthe employee had claimed to be sick andthat the certificate from her traditionalhealer did not meet the requirements of s23 of the BCEA. It pointed out that it wasnot the employee s case that she was ill inthe conventional sense. Her case was that,based on her cultural and traditional beliefshe was in a condition and that, followingfrom consultations with persons she believedwere in a position to assist her, she shouldundergo training to become a sangomabecause she had a calling from herancestors. This was evident from the wayin which the issue was treated when sheasked to work the morning shift. She hadbeen accommodated without any questionbeing raised as to whether she was medical evidence was required to provethat she was sick. The problem only arosewhen she asked for a month s leave ofabsence, in circumstances where she hadinsufficient leave credit, that the issue ofillness and medical proof came to the then pointed out that s 23 of the BCEAdid not apply to this situation because theemployee had not applied for sick leave,but rather for unpaid leave.

8 The employer argued that thecommissioner s findings opened thefloodgates to malpractices that would becontrary to the letter and spirit of SouthAfrican labour legislation presumablymeaning there would be abuse ofcertificates submitted by traditional was rejected in the following terms - [26] It was contended further that the effect ofthe commissioner s findings and award is toopen the floodgates to malpractices thatoperate towards turning the work environmentinto total disarray, contrary to the letter andspirit of labour legislation . It would bedisingenuous of anybody to deny that oursociety is characterised by a diversity ofcultures, traditions and beliefs. That being thecase, there will always be instances where thesediverse cultural and traditional beliefs andpractices create challenges within our society,the workplace being no exception. TheConstitution of the country itself recognisesthese rights and practices.

9 It must be recognisedthat some of these cultural beliefs and practicesare strongly held by those who subscribe to themand regard them as part of their lives. Thosewho do not subscribe to the others culturalbeliefs should not trivialise them by, for exampleequating them to a karate course. What isrequired is reasonable accommodation of eachother to ensure harmony and to achieve a unitedsociety. A good example of accommodation wasdemonstrated by Walter when the respondentfirst approached him about his correctly involved other staff membersand they all found a common ground toaccommodate the employee. The fact that the"The fact that the appellant s attorney does not believe in theauthenticity of the culture and that no credible and expert evidencewas presented to prove that the respondent was ill is, in my view,subjective and irrelevant. A paradigm shift is necessary and one mustappreciate the kind of society we live in.

10 Accommodating one anotheris nothing else but botho or Ubuntu which is part of our heritage asa society. Labour Appeal Court: Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and OthersPage 4 Contemporary Labour Law Vol 22 No 1 August 2012appellant s attorney does not believe in theauthenticity of the culture and that no credibleand expert evidence was presented to prove thatthe respondent was ill is, in my view, subjectiveand irrelevant. A paradigm shift is necessaryand one must appreciate the kind of society welive in. Accommodating one another is nothingelse but botho or Ubuntu which is part of ourheritage as a society. Reference was also made to the decision of theConstitutional Court in MEC for Education,Kwazulu-Natal and Others v Pillay 2008 (1) SA474 (CC), a case dealing with a learner who had failedto conform to the dress code implemented by herschool.