Consider the following scenario: your employee informs you that she has been seeing visions of her ancestors and that this represents a calling for her to become a traditional healer. She requests unpaid leave in order to attend a traditional healer’s course and, when you refuse the leave, she produces a certificate from her traditional healer. What do you do? Do you accept the traditional healer’s certificate as a valid medical certificate or do you dismiss the employee when she fails to arrive at work?
If your preference is for the latter course of action, think again.
In a recent Constitutional Court decision in a case with the facts as above, a traditional healer’s certificate was regarded as a valid certificate and the employee’s dismissal was found to have been substantially unfair.
Here is the background to the matter: Kievits Kroon Country Estate is an award-winning hotel and spa, nicknamed “the Winelands in Gauteng” because of its Cape Dutch-style architecture. It has a reputation for its excellent food and carefully selected wine and is described on the sa-venues website as “a superb destination that strikes a harmonious balance between sensory indulgence and luxurious hospitality”. Given its reputation and what it strives to achieve, the hotel is focused on excellent service and requires staff to assist in meeting the expectations of its guests. When one of its chefs, Ms Johanna Mmoledi, requested unpaid leave for five weeks to attend a further part of a traditional healer’s course because of her calling, the hotel agreed to let her have one week off because it was a busy time, it was short-staffed and it had already accommodated her in allowing her time off to attend the first part of the course.
In support of her request for leave, Ms Mmoledi delivered a certificate from a traditional healer, Ms Masilo. The certificate confirmed that Ms Mmoledi had been under Ms Masilo’s care since January 2007, that she had been having “perminisions of ancestors” (calling of ancestors) and that she would resume work on 8 July 2007. When Ms Mmoledi did not return to work after the week allowed by the hotel, a disciplinary inquiry was held and she was dismissed for misconduct and insubordination.
During the CCMA hearing which ensued, Ms Mmoledi testified that she believed she was sick because she saw visions of her ancestors and therefore had to become a traditional healer. She also testified that, had she not attended the course, her health would have been in danger and she may have collapsed. The hotel, for its part, conceded that if Ms Mmoledi had produced a certificate from a medical practitioner instead of a traditional healer’s certificate, as proof of her illness, she would not have been dismissed. The Commissioner accepted that Ms Mmoledi genuinely believed that her health would be in danger if she did not heed the calling of her ancestors and that her belief stemmed from deeply held cultural convictions. He therefore decided in her favour.
The matter then went through the Labour Court, the Labour Appeal Court and the Supreme Court of Appeal, to the Constitutional Court in November 2013.
The Constitutional Court, in confirming that her dismissal was unfair, made the following observations:
- Such belief systems as were held by Ms Mmoledi exist and are part of the culture of significant sections of South Africa’s populace; as part of these belief systems, people resort to traditional healers for their physical, spiritual and emotional well-being;
- The methods of diagnosis and treatment in conventional medicine are completely different from those in traditional medicine and whereas conventional medicine is governed by objective standards, traditional medicine deals with religious doctrine and cultural practice;
- In dealing with cases relying upon traditional medicine, our Courts are unable and not permitted to evaluate the acceptability, logic, consistency or comprehensibility of the adherent’s belief.
- The Courts are concerned only with the sincerity of the adherent’s belief and whether it was being invoked for an ulterior purpose, and had to investigate the grounds advanced to demonstrate that the belief existed.
- Since Ms Mmoledi genuinely believed that she would suffer serious misfortune if she did not heed the calling of her ancestors, she was justified in disobeying the instruction of the hotel;
- Notwithstanding the above, if an employee takes a prolonged absence from work for incapacity due to ill health, the employer may, if it is fair, consider ending the employment relationship
The lessons from this case for you as employers are clear:
- Take seriously medical certificates from traditional healers – ignore them at your peril;
- Amend sick leave policies to allow for such certificates, bearing in mind that until the Traditional Health Practitioner Council of South Africa becomes operative and traditional healers can register as members, the authenticity of these certificates will be difficult to verify; and
- Balance what you regard as a fair labour practice with your employee’s right to his/her cultural beliefs.