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.

2 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. 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.

3 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.

4 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. 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.

5 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.

6 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. An average person values his or her life asmore important than anything else and will doanything to save his or her life.

7 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.

8 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. 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].

9 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.

10 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.