Wednesday, March 13, 2013

Culture Wins Case In Court In South Africa

SECTION 23(2) of the Basic Conditions of Employment Act states that a "medical certificate must be issued and signed by a medial practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament".

In a matter that came before the Commission for Conciliation, Mediation and Arbitration (CCMA), the commissioner was called upon to determine whether a certificate issued by a traditional healer/sangoma to be handed to an employer by an employee, verifying that the employee suffered from "premonitions of ancestors" and needed to attend a month-long ceremony or she would collapse and no one would be able to help her, complies with the provisions of Section 23(2) of the Basic Conditions of Employment Act.
The employer refused the employee's request for leave to attend the ceremony and instead offered one week's unpaid leave.
The employee declined the employer's offer and absented herself from work for a month to attend the ceremony.
The CCMA found that the employee's conduct was justified because she believed that she had to choose a course that would save her life.
The employer took the CCMA's decision on review to the Labour Court. The Labour Court dismissed the review application. The employer then appealed to the Labour Appeal Court.
The Labour Appeal Court held that the Constitution recognises traditional beliefs and practices and some of them are strongly held by those who subscribe to them and regard them as part of their lives.
Those who do not subscribe to others' cultural beliefs should not trivialise them.
What is required is reasonable accommodation of each other to ensure harmony and to achieve a united society.
Furthermore it would be disingenuous of anybody to deny that our society is characterised by a diversity of cultures, traditions and beliefs.
That being the case, there will always be instances where these diverse cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception.
The Labour Appeal Court also rejected the employer's argument that the commissioner's findings will open the floodgates to malpractices in the workplace because each case has to be decided on its own facts.
The lesson to be learned from this case is that employers have to be sensitive to the religious and cultural beliefs of their employees.
Employees' cultural and religious beliefs should not be trivialised merely because employers do not subscribe to them.
Employees also need to be sensitive that the primary objective of any business is to make a profit and therefore employees and employers must strive to reach a compromise in order to achieve and maintain peace in the workplace.
  • Modise is the chairman and Khoza is a second-year candidate attorney at Routledge Modise

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