Employee absence based on religious beliefs or cultural convictions

In the South African working environment, one rich with an array of religions and cultures, employers may be faced with absences which do not seem to fall within the ordinary categories of leave, namely, annual leave and sick leave. This article is predominantly concerned with the incidents of employee absence occasioned by the calling to become a Sangoma (traditional healer) as it is a common occurrence. 

When an employee informs the employer that he or she has been called and is likely to be absent for a significant period of time to pursue their calling, there are several courses of action available to the employer. Many companies may be inclined to charge the employee with misconduct in the form of desertion or absence without authorization (depending on the length of the absence). However, the case law suggests that dismissal for misconduct in these circumstances would not be appropriate in light of the employee’s Constitutional Right to freedom of thought, conscience and religion.

In light of the above, employer’s often find themselves caught between employee absence, which impacts on production, and the employee’s right to religion. When employers approach us for advice in this respect, we make one of two suggestions depending on the particular facts of each case:

1. Engage the services of the Limited Duration Contractor:

• Limited Duration Contracts are contracts that allow an employer to have a measure of flexibility within the workplace. The contract, unlike a permanent employment contract, comes to an end on a specific date or at the end of a particular project. This flexibility allows an employer to engage a person for a limited period of time to fulfill certain operational requirements.
• Section 198B of the Labour Relations Act 55 of 1995 (quoted hereunder) governs the use of Limited Duration Contracts and subsection 4(a) specifically provides that “the conclusion of a fixed term contract will be justified if the employee— (a) is replacing another employee who is temporarily absent from work.”
• In light of the abovementioned section, the employer would be entitled to engage another worker in terms of a Limited Duration Contract to replace the employee for the duration of his or her absence. This arrangement would be similar to the replacement worker who’s services would be engaged in the event that a female employee goes on maternity leave.
• If you were to decide to implement this option, the employee would take an unpaid period of absence to fulfil his or her calling and be replaced temporarily. No dismissal, and the accompanying procedures, would need to take place.
• If the employer decided to implement this option, the limited duration contract must specifically inform the temporary worker of the expiry date of said contract. This will ensure that, at the time of the job’s inception, it was made clear that the employment will only last for a limited duration. In addition thereto, the temporary worker must be issued with a Notice of Termination one week prior to the end of his contract as a reminder that his contract will to be brought to an end.

“198B. Fixed term contracts with employees earning below earnings threshold

(1) For the purpose of this section, a ‘fixed term contract’ means a contract of employment that terminates

on—

(a) the occurrence of a specified event;

(b) the completion of a specified task or project; or

(c) a fixed date, other than an employee’s normal or agreed retirement age, subject to subsection (3).

(2) This section does not apply to—

(a) employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act;

(b) an employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years, unless—

(i) the employer conducts more than one business; or

(ii) the business was formed by the division or dissolution for any reason of an existing business; and

(c) an employee employed in terms of a fixed term contract which is permitted by any statute, sectoral determination or collective agreement.

(3) An employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if—

(a) the nature of the work for which the employee is employed is of a limited or definite duration; or

(b) the employer can demonstrate any other justifiable reason for fixing the term of the contract.

(4) Without limiting the generality of subsection (3), the conclusion of a fixed term contract will be justified if the employee—

(a) is replacing another employee who is temporarily absent from work;

(b) is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months;

(c) is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession;

(d) is employed to work exclusively on a specific project that has a limited or defined duration;

(e) is a non-citizen who has been granted a work permit for a defined period;

(f) is employed to perform seasonal work;

(g) is employed for the purpose of an official public works scheme or similar public job creation scheme;

(h) is employed in a position which is funded by an external source for a limited period; or

(i) has reached the normal or agreed retirement age applicable in the employer’s business.”

2. Dismissal due to Incapacity:

• In the matter of Kievets Kroon Country Estate (Pty) Ltd v Mmoledi and others [2014] 1 All SA 636 (SCA) the court grappled with a dismissal concerning an employee who had received a calling. The salient facts of the matter and findings of the courts are as follows:
  • The employee requested one month of unpaid leave to attend a ritual ceremony for sangoma training. She submitted a certificate from a traditional healer (and other supporting documents) in support of her request. to substantiate her request. The employee also informed the employer that if she did not fulfil the calling, she would die. The employer refused the request. Despite this refusal, the employee went on the training without permission and, upon her return, was charged with insubordination and absence from work. These charges culminated in her dismissal. This dismissal was occasioned by misconduct in the employer’s view. After having been dismissed, the employee referred an unfair dismissal dispute to the CCMA.
  • In this regard it is well-established that where an employee absents herself from work without permission, and in the face of her employer’s lawful and reasonable instruction, a court is entitled to grant relief to the employee if the failure to obey the order was justified or reasonable. The commissioner’s inquiry thus sought to determine whether the employee was justified in failing to obey the order. 
  • The CCMA Commissioner found 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 ordered reinstatement.
  • The employer approached the Labour Court to review on the basis that the commissioner exceeded his powers but also failed to apply his mind to the matter he was called upon to consider and adjudicate. Judge Francis of the Labour Court dismissed the employer’s review application and stated that “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 matter ultimately ended up before the Supreme Court of Appeal (SCA). The SCA found that an expert witness, a traditional healer, had led evidence before the CCMA that had the employee not heeded the call of the ancestors to attend the course, she had a fearful apprehension of suffering serious misfortune. This evidence went unchallenged by the employer. The appeal was therefore dismissed with costs including the costs of two counsels. The SCA further held that the employer could have explored with the employee alternatives to her taking leave to attend the course at the time when it would be convenient to accommodate her if possible.  
  • But the court also went on to suggest that these matters may be better dealt with as an issue of incapacity. It stated as follows:

“It is also significant that Mr Walter [the employee’s manager] testified that the respondent would not have been dismissed if she had produced a certificate from a medical practitioner, instead of the traditional healer, as proof of her illness. The certificate from the traditional healer was considered ‘meaningless’ and was therefore rejected as proof of illness. But had he understood it to be equivalent to a medical certificate or tried to understand its import by asking the respondent to explain its meaning, instead of summarily rejecting it, he may well have accommodated her request. Further the appellant could have explored with the respondent alternatives to her taking leave at that time, such as her attending the course when it was convenient to accommodate her request if possible.

It should be mentioned that an employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. And it may, if it is fair in the circumstances, exercise an election to end the employment relationship. But that was not the situation in this case.”

• With the abovementioned case law in mind, and the comment made by the SCA, the company may choose to dismiss the employee on the grounds of incapacity. However, prior to any dismissal for incapacity, there are a number of steps which must be followed by the employer. Items 10 and 11 (quoted hereunder) of the Code of Could Practice: Dismissal, contained in Schedule 8 of the LRA, set out that the employer should conduct an investigation into the employee’s capacity (See item 11 (a) and (b)). Thereafter, an incapacity enquiry must be convened, and the employee must be given the opportunity to make representations in this regard.
• It bears due consideration that the investigation, and subsequent incapacity enquiry, may be complicated if the employee has travelled to a different province to pursue his or her calling. Having said that, the Code of Good Practice does not prescribe the way that the investigation or the incapacity enquiry is to be conducted. As such, the employer may devise an alternative method of communicating with the employee which ensures that he is afforded the opportunity to be heard. This may need to take place by way of a virtual enquiry or the exchange of written correspondences.
• It is likely that this process will be administratively burdensome and will take some time to carry out.

“10. Incapacity: Ill health or injury

(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.

(2) In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

11. Guidelines in cases of dismissal arising from ill health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider –

(a) whether or not the employee is capable of performing the work; and

(b) if the employee is not capable –

(i)  the extent to which the employee is able to perform the work;

(ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and

(iii) the availability of any suitable alternative work.”

In summary, when an employer is faced with employee absence occasioned by a calling to become a Sangoma, we would suggest one of two courses of action. The employer may choose to accommodate the employee by placing his or her employment in abeyance for the duration of the absence. The employee will then be temporarily replaced by a Limited Duration Contractor. Alternatively, the employer may initiate an investigation into the employee’s capacity and, thereafter, convene an incapacity enquiry which may result in the employee’s dismissal. Each of these matters should be dealt with on a case-by-case basis, taking into consideration the particular facts of each matter.