The BCEA provides for annual leave, sick leave, maternal leave, parental leave, adoption leave and family responsibility leave. With regards to sick leave, the same Act provides that for a sick leave cycle. The sick leave cycle is a period of 36 months’ employment with the same employer, either following their employment or completion of their prior sick leave cycle. When on sick leave, an employee must be paid the ordinary wages they would have received on that day.
When a person has been absent for more than two consecutive days, they are required to produce a medical certificate from a medical practitioner or any other person certified to diagnose and treat patients, and registered with a professional council. The Main Agreement recognises medical certificates issued by traditional health practitioners, being, diviners, herbalists, traditional birth attendants and traditional surgeons, only if they are certified to diagnose and treat patients, and registered with a professional council, which at this stage they are not, as the Interim Traditional Health Practitioners Council is not as yet operational. To note that some employers may choose on their own accord to accept medical certificates from traditional healers, even though it is not a legal requirement.
The groundbreaking decision of Kievits Kroon Country Estate (Pty) Ltd vs Mmoledi and Others (JS78/10), recognised the right to freedom of religion. Briefly, Mmoledi worked as a chef at Kievits. During her employ she was undergoing training to become a traditional healer. Her employers knew about her circumstances, and had made some adjustments to accommodate her. On the final stretch of her training, she applied for extended leave, which was declined. She was offered unpaid leave for a week, but she declined the offer, stating that it was insufficient time for her to finish her training. Notwithstanding the lack of permission, she did not report to work for over a week. She instead left a letter for her manager. The letter was from her Upon her return, she was charged with, inter alia, insubordination, absent without leave, and non-compliance with procedure. She was found guilty, and dismissed.
At the CCMA, the arbitrator found her dismissal unfair and ordered her reinstatement. This was on the basis that the company had failed to understand that the employee believed that her if she does not undergo training, she would lose her life. The company did not understand that her belief was so deep-seated, that she was willing to her risk her job. At the Labour Court and Labour Appeal Court, the arbitrator’s decision was supported. The matter ended in the Supreme Court of Appeal (SCA). The SCA acknowledged that courts are familiar and equipped to deal with disputes arising from conventional medicine, and governed by objective standards, whilst are often not equipped to deal with questions regarding religious doctrine or cultural practice.
In other words, had the company received a medical certificate from a medical doctor, they would have accepted her request, and seen her ‘illness’ as serious. However, because her ‘medical note’ was from a traditional healer, it was seen as meaningless.
What is significant in this case is that the request from the traditional healer was not for sick leave, but was for five weeks leave for her graduation as a traditional healer.
The SCA acknowledged that a company is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. A company may exercise its right to terminate the employment relationship, provided due process is followed. The SCA also confirmed the arbitrators decision, that the dismissal was not fair.
Whilst the court case brought about important dialogue, on respecting and acknowledging different believes and cultural practices in the workplace, it left a vacuum on how employers and employees can practically manage such situations.
One organisation that appears to have found a mutually acceptable solution is Transnet. According to Kgomotso Modise, GM of Compliance at Transnet, when she experienced her own spiritual awakening, accompanied by training, her and the organisation had to find a solution. Modise shared with the audience at the 2024 HR Indaba, that after extensive consultation with management, it was agreed that she would be granted six months leave to complete her training. The first three months would be paid leave, and the rest unpaid. The company, recognising that there were many other employees in its organisation experiencing similar difficulties, developed a policy. Together with trade unions, management, and others who had similar experiences, the organisation developed the ‘Spiritual Leave Policy’. In terms of the policy, an employee who has been with the organisation for at least one year, may submit a written application. The application must be verified by a spiritual healer, that the individual requires training. If the application is approved, the individual is granted at least six months to complete their training, with three months unpaid. Upon their return, the individual must provide proof of completion of training, and ‘fit for work’ assessment to ensure that they are still fit for the role for which they were employed. In addition, the individual needs to work back their three months’ paid leave. The policy is not limited to sangomas, but includes all spiritual callings.
Some companies may have policies in place for the submission and acceptance of medical certificate issued by spiritual healers. However, when it pertains to extended leave for spiritual training, many still grapple with finding viable solutions. Policy-makers need to take into consideration the uniqueness of their organisations, and whether the organisation can afford extended absences. The Code of Good Practice: Dismissal – provides guidelines on managing incapacity due to ill-health or injury.
