In a recent judgment by the South African Supreme Court of Appeal, the Court pronounced on a labour dispute which some of the readers may find of some interest. Following hereunder a posting by the writer in which he dealt with the judgment and its potential consequences for SA employers:





By now most zealous readers of Labour Court judgments have come across the as of yet unreported Kievits Kroon judgment delivered by the SCA on 29 November 2013. The judgment has caused a stir amongst employers for what appears to be all the wrong reasons. The perception is that the Court elevated a "certificate" or "letter" from any traditional healer to the same status as that of a medical practitioner as defined in sec 1 of the BCEA, 75 of 1997. In Kievitskroon the employee was dismissed due to unauthorised absence from work in that she attended a course to become a traditional healer. She requested permission to be absent from work for a month and submitted a letter, as well as certificate from a traditional healer in substantiation of the necessity to be trained as a traditional healer. The training and eventual graduation as a healer was a ancestral calling which she was obliged to honour failing whereto she would face all sorts of evil including death. The employer refused permission; however, the employee in defiance attended the training and upon return to work was dismissed. Subsequent to a dispute referral to the CCMA she was reinstated without back pay. The employer took the matter and review and appeal and was unsuccessful. The LAC held that "Section 23 of the BCEA, therefore, finds no application on the issue in this case. Similarly, the argument [by the employer] that by enacting section 23 of the BCEA the legislature in express terms opted for standards in line with Western standards as opposed to African culture is misplaced as well. I am as a result unable to find, as we are urged to do, that the Commissioner usurped the function of the legislature by elevating the role of traditional healers to that of medical practitioners". It was contended further that the effect of the Commissioner’s findings and award was to open the floodgates to “malpractices that operate towards turning the work environment into total disarray, contrary to the latter and spirit of labour legislation”. The LAC rejected the argument, "It would be disingenuous of anybody to deny that our society is characterized 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 Constitution of the country itself recognizes these rights and practices. It must be recognized that some of these cultural beliefs and practices are strongly held by those who subscribe in them and regard them as part of their lives". The arbitration award and the two court decisions, which were upheld by the SCA, despite references made to illness, Kievitskroon was not a case dealing with absence from work due to illness. The case turned on whether an employee's unauthorized absence from work justified dismissal. The Commissioner found that the employee had a justifiable reason for being absent. Regarding the "opening of floodgates" the LAC referred to what Langa CJ said in MEC for Education, KwaZulu-Natal and others v Pillay 2008 (1) SA 474 (CC) at par [107] [also reported at [2008] JOL 20810 (CC) – Ed] "...Firstly, this judgment applies only to bona fide religious and cultural practices. It says little about other forms of expression. The possibility for abuse should not affect the rights of those who hold sincere beliefs..These authoritative remarks are equally relevant in this case. It must be left to employers and their employees to develop systems in their workplaces when confronted with these challenges".


A reader of the posting posed the following question: “Are we really expected to conduct business on this basis. Surely there needs to be more stringent guidelines. What about all the other beliefs of all the various religions that exist?
There is a little too much emphasis being placed on cultural beliefs and rights to the detriment of the rights of the employer”.





The Reply:


“Dear Sir, as is the case in all judgments it is important to first read the facts and then ascertain from the reasons contained in the judgment, the findings of the Court and the legal principles established, if any. Of importance was that in the LAC judgment which preceded that of the SCA, the LAC specifically made reference to the decision of the Constitutional Court in MEC for Education, Kwazulu-Natal and Others v. Pillay 2008 (1) SA 474 (CC), wherein the CC pointed out that protection would only be granted to bona fide cultural and religious practices, that diversity was something to be celebrated and not feared. The acceptance of one practice would not require an employer to permit all practices. If accommodation would impose an unreasonable operational burden on an employer it need not make such an accommodation. Employers should consider "Kievits Kroon - scenarios" with care and, where possible, to seek to accommodate the employee in this regard, taking into account its own legitimate operational and other requirements.


In the LAC and SCA judgments the Courts identified that there will always be instances where diverse cultural and traditional beliefs and practices create challenges within our society. Employers should study the arbitration award and the High Court judgments wherein reference was made, in passing, as to a legitimate and fair manner which a Kievits Kroon-scenario should be managed. However, employers should not expect the Courts to assume an advisory role in Industrial Relations Management. It is the duty of responsible management to engage employees in a joint consensus-seeking process in an attempt to reach an agreement on a policy and procedure in order to manage the issue”.


In conclusion one could use the expression, “Never a dull moment for SA managers”! However, solace is to be found in the knowledge that from the contents of the postings on the various blogs it is very much apparent that SA managers should not get despondent due to the prevalence of workplace strife. In an article by Mr Ed Sweeney, chairman of ACAS, a UK based organization wherein he observed, "There are signs that the difficult economic climate in recent times has seen an increase in individual disputes, as employers look to cut costs and improve performance. For example, the CIPD's 2011 conflict management survey reported that 'the scale of workplace conflict is remarkable and has increased in the recession' - importantly, one message has emerged loud and clear - senior management in organizations needs to start thinking about conflict as a strategic issue". Innovative approaches to conflict management need to be integrated with broader strategies related to employee health, wellbeing and engagement. There is growing evidence that workplace mediation can help to resolve issues that might otherwise result in long-term absence and litigation, offering substantial savings in terms of staff time and cost.