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[2013] ZASCA 189
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Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (875/12) [2013] ZASCA 189; 2014 (1) SA 585 (SCA); [2014] 3 BLLR 207 (SCA); [2014] 1 All SA 636 (SCA); (2014) 35 ILJ 209 (SCA) (29 November 2013)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 875/12
Reportable
In the matter between:
KIEVITS KROON COUNTRY ESTATE (PTY)
LTD
....................................
APPELLANT
and
JOHANNA
MMOLEDI
.......................................................................
FIRST
RESPONDENT
COMMISSIONER
KHOMOTJO DANIEL MATJI
...................
SECOND
RESPONDENT
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
........................................................................
THIRD
RESPONDENT
Neutral citation:
Kievits Kroon Country Estate v Mmoledi (875/12)
[2013] ZASCA
189
(29 November 2013)
Coram
:
Brand, Cachalia, Leach, Willis JJA and Zondi AJA
Heard
: 11
November 2013 Delivered: 29 November 2013
Summary:
Unfair dismissal - whether employee’s reliance on a ‘calling
from ancestors’ justifiable reason for disobeying
employer’s
instruction for employee to report for duty - whether traditional
healer’s certificate to be equated with
medical certificate for
purposes of sick leave.
ORDER
On appeal from:
Labour Appeal Court
(Tlaletsi, Ndlovu JJA and Murphy AJA concurring sitting as court of
appeal):
‘The appeal is dismissed with costs,
including the costs of two counsel.’
JUDGMENT
CACHALIA JA (BRAND, LEACH, WILLIS JJA AND
ZONDI AJA CONCURRING):
[1]
The
appellant, Kievits Kroon Country Estate (Pty) Ltd, is a company that
offers conference and leisure facilities to its clients.
It has two
hundred employees, one of whom was the respondent, Ms Johanna
Mmoledi. The appellant charged her with misconduct for
disobeying an
instruction to report for duty and being absent from work without
permission. A disciplinary inquiry found her guilty
and recommended
her dismissal on 15 June 2007. The appellant dismissed her the
following day. She referred the dispute to the Commission
for
Conciliation, Mediation and Arbitration (the CCMA), which found that
her absence from duty was caused by circumstances beyond
her control.
It accordingly held her dismissal substantially unfair and ordered
her reinstatement, but without retrospective payment.
Both the Labour
Court and the Labour Appeal Court (the LAC) upheld that decision. The
appellant now appeals to this court with
its special leave.
[2]
The
parties see and understand the dispute dichotomously. The appellant’s
case is that the respondent wilfully absented herself
from work after
the appellant had refused to grant her leave for an extended period
to attend a training course unrelated to her
work. Hers is that she
had no option but to stay away from work because she had to attend a
course to be trained as a traditional
healer in response to a calling
from her ancestors. The factual background will illuminate the
dispute.
[3]
The respondent commenced her employment
with the appellant in March 2005, was promoted to a supervisory
position as Chef de Partie,
and was fourth in charge in that part of
the kitchen where food is prepared for the appellant’s guests.
The kitchen operates
a morning shift from 6h00 until 15h00, and an
afternoon shift which commences at 14h00 and ends at 23h00. The
employees are rotated
weekly.
[4]
Sometime between April and May 2007 the
respondent approached the executive chef and her manager, Mr Stephen
Walter, requesting
that she be exempt from the afternoon shift so
that she could attend a traditional healer’s course. She
explained that she
had been seeing visions of her ancestors, the
significance of which, as I understand the evidence, was that she had
a calling to
become a traditional healer. Mr Walter spoke to the
other staff affected by her request in an effort to accommodate her.
They were
willing to assist, and the shift-schedule was amended so as
to excuse her from working the afternoon shift. For her part she
agreed
to assist if the need arose.
[5]
On 1 June 2007, she again approached Mr
Walter to be allowed time off. This time she requested permission to
take unpaid leave of
absence for almost five weeks - from 6 June 2007
until 8 July 2007 - to continue with her course. Mr Walter discussed
her request
with the human resources manager, Ms Adri Dreyer, who
told him that the respondent had used up almost all leave due to her,
ie
annual leave, sick leave and compassionate leave. The respondent
had also received a final written warning in December 2006 for
staying away from work despite an instruction prohibiting her from
doing so. On that occasion she had stayed away to have her cellular
phone repaired.
[6]
Mr
Walter was nonetheless prepared to accommodate the respondent’s
absence for another week, but no longer. The reason was
that the
appellant was very busy, short of staff and would not be able to
provide a proper service to its
guests
without her. She was therefore instructed to return to work on 6 June
but was not willing to accede to this instruction.
[7]
On this discordant
note, the respondent approached Ms Dreyer to pursue the matter
further. She told her that she would deliver a
letter from her
traditional healer
to support her
request for unpaid leave. Ms Dreyer informed her that this would not
make any difference as Mr Walter had already
decided not to accede to
her request.
[8]
Nevertheless the respondent returned to
Ms Dreyer’s office later with the ‘letter’ to which
she had referred earlier.
Ms Dreyer was not present. The respondent
left an envelope with two documents on Ms Dreyer’s desk. The
first was a note from
her traditional healer, Mrs Agnes Mamoreroa
Masilo, requesting permission for the respondent to be excused from
work from 4 June
to 8 July 2007 to complete her traditional healer’s
course. The second was a certificate, also from Mrs Masilo,
confirming
that the respondent had been under her care since 13
January 2007, and had been diagnosed by her as having ‘perminisions
of ancestors’. The meaning of the phrase was not properly
explained but it appears to mean the ‘calling’ or the
‘visions’ referred to earlier. The certificate went on to
say that the respondent would resume work on 8 July 2007.
This
document is important because one of the arguments proffered by the
respondent at both the disciplinary and CCMA hearings
was that the
certificate should have been construed as a sick note equivalent to a
medical certificate from a medical practitioner.
[9]
After depositing the envelope on Ms
Dreyer’s desk the respondent returned to the kitchen, completed
her duties, and left thereafter.
She was due back as instructed on 6
June. The day before that she phoned Ms Dreyer to enquire whether she
had received the documents.
Ms Dreyer confirmed that she had but that
the respondent’s application for leave of absence had not been
approved. She also
told the respondent that she would face
disciplinary action if she did not report for duty. The respondent
indicated that she would
not return, and she did not.
[10]
By 12 June, when the respondent had not
returned to work, the appellant charged her with misconduct under the
company’s workplace
rules. There were four charges:
non-compliance with established procedures, gross insubordination,
acting to the detriment of the
company and being absent from work for
more than three days without permission. The main charge related to
her absence from work
and the remaining charges arose as a
consequence of this charge. Three days later, on 15 June, a
disciplinary hearing was held
at the appellant’s premises.
[11]
It appears from the ‘Disciplinary
Hearing Report’ that when Mr Walter explained to the respondent
that he was not able
to accommodate her request for more than a week
she responded by saying that she was ‘serious’, meaning
that she was
seriously ill. This was a reference to her being
‘disturbed in her spirits’. And as I have mentioned, the
letter from
her traditional healer confirmed this and requested that
she be excused from work to complete her course.
[12]
Nonetheless the respondent was found to
have disregarded the company’s policies and procedures by
absconding to attend a course
unrelated to her employment without her
employer’s permission. The chairman of the disciplinary
tribunal also rejected her
submission that the period of absence be
construed as sick leave. In this regard he held that her reliance on
the letter from her
traditional healer was misplaced because it was
not a letter by a medical practitioner that would provide proof of
illness as required
by the
Basic Conditions of Employment Act 75 of
1997
. She was accordingly found guilty as charged and, following a
recommendation from the tribunal, dismissed. She then referred an
unfair dismissal dispute to the CCMA.
[13]
The CCMA hearing proceeded on 31 October
2007. An official of the trade union, SACCAWU,
[1]
represented the respondent. An attorney appeared for the appellant.
In a nutshell, the appellant’s evidence as given by Mr
Walter
and Ms Dreyer was that the respondent was refused unpaid leave
because of the company’s business requirements; and
the fact
that she wanted to attend a traditional healer’s course had no
bearing on the decision. They dealt with her request
in a manner that
they would have any similar request for unpaid leave. Moreover, they
bent over backwards to accommodate her by
agreeing to allow her a
week’s leave, but could not accommodate her any further. They
did not understand what was meant by
the reference to ‘perminisions
of ancestors’ or that this phenomenon was related to some form
of illness. Importantly,
they conceded that they would have accepted
a medical certificate from a registered medical practitioner as proof
of illness, but
could not accept as a valid reason a request for
unpaid leave to attend the traditional healer’s course for such
a long period.
[14]
For her part the respondent testified
that she believed that she was sick because she saw visions of her
ancestors. She was therefore
required to complete certain tasks with
a traditional healer so that she also could become a traditional
healer. Importantly, in
response to questions from the commissioner,
she testified that had she not attended the course, her health would
have been in
danger and she may have collapsed; only her traditional
healer could help her. Mrs Masilo, her traditional healer, testified
that
she had treated the respondent from 13 January to 8 July 2007
because she had ‘perminitions’, which were visions of
her
ancestors. She testified further, also in response to the
commissioner’s questions, that had the respondent not defied
her employer to attend her course, something ill - including death -
may have befallen her. Surprisingly, neither the respondent’s
nor Mrs Masilo’s evidence in this regard was challenged. Their
testimony on this aspect became the lynchpin for the commissioner’s
award.
[15]
The
commissioner considered that there was a cultural chasm between Mr
Walter and the respondent. Because of this he was not able
to
understand the significance of her request to be released from duty
to attend the traditional healer’s course. If he had
understood
the request, so the commissioner reasoned, he would have regarded her
condition as a disease that would have qualified
her for sick leave.
And because the respondent genuinely believed that her health would
be in danger if she did not heed the call
from her ancestors to
undergo training to become a traditional healer, which Mrs Masilo
confirmed, she had no option but to defy
her employer’s
instruction to report for duty. She had thus proved, said the
commissioner, that ‘her absence from duty
was necessitated by
circumstances beyond her control’. Her dismissal was therefore
substantively unfair.
[16]
The Labour Court concluded that the
award was well reasoned. Likewise, the LAC held that the
commissioner’s conclusions were
supported by reasons; that the
reasoning process could not be faulted; that he had been alive to the
issues and that
he
had properly applied his mind to the material before him. The LAC
therefore dismissed the appeal but made no costs order.
[17]
The appellant takes issue with the
award: it contends that the commissioner undertook the wrong inquiry
by asking whether the respondent
was justified in failing to report
for duty. The problem was compounded, it is contended, when in the
absence of any expert or
other evidence by the respondent on what was
meant by ‘perminitions’, calling or visions of ancestors,
the commissioner
took judicial notice of the meaning of these
concepts. Furthermore, complains the appellant, it cannot be expected
to plan and
cater for perceptions of the supernatural - visions of
ancestors - in the running of its business.
[18]
The real question before the
commissioner, says the appellant, was whether it properly applied the
principles applicable to an application
for unpaid leave for purposes
unrelated to the employment contract between the parties. Those
principles require a consideration
of the circumstances prevailing at
the time when the application for leave is made, taking into account
the interests of the employer
and the employee. In this regard the
commissioner had to consider whether or not it was fair for the
employer not to grant unpaid
leave to the respondent. Considered
thus, submits the appellant, the following facts made the dismissal
substantively fair: the
employment contract made no provision for
unpaid leave; the appellant accommodated her request by allowing a
week’s leave
despite her only having made an informal request;
her request for more than five weeks was unreasonable given the
operational requirements
of the business; and she was insolent in
defying the instruction to report for duty.
[19]
In summary, it is contended on behalf of
the appellant that the commissioner committed a gross irregularity
within the meaning of
s 145(2)(a)(ii)
of the
Labour Relations Act 66
of 1995
[2]
by misconceiving the true nature of the inquiry: he asked
the
incorrect question, ie whether the respondent was justified in not
reporting for work; and he failed to appreciate the true
nature of
the inquiry ie, whether or not the appellant had properly applied the
principles applicable to a request for unpaid leave.
Had he done so,
so it is submitted, he would have concluded that the dismissal was
substantively fair.
[20]
It must be borne in mind that a CCMA
commissioner, adjudicating an unfair dismissal complaint, does not
perform a review function
but determines the dispute afresh. This
means that the ambit of the inquiry is not confined to the record of
a prior disciplinary
hearing. The commissioner performs his or her
function inquisitorially with little formality, but subject to the
overriding requirement
of fairness. Ultimately the commissioner must
determine the true facts and reach a fair and equitable decision. And
if the commissioner
determines the dispute in accordance with a fair
procedure, a review court will not interfere with the decision unless
it is one
that could not have been reasonably made on the available
material.
[3]
[21]
I turn to consider the appellant’s
submission that the commissioner misconstrued the true nature of the
inquiry.
[4]
It is apparent from the respondent’s evidence at both the
disciplinary hearing and at the CCMA that she believed that she
was
ill. Her employer seems to have understood that her experiences bore
some cultural significance - hence Mr Walter’s willingness
to
accommodate her on two occasions. But he did not understand this as
some form of illness. The chairman of the disciplinary inquiry
also
did not accept that she was ill without proof from a medical
practitioner: the letter from the traditional healer did not
suffice.
[22]
In
contrast the commissioner accepted that the respondent genuinely
believed that her health would be in danger had she not heeded
the
calling of her ancestors. And that her belief stemmed from deeply
held cultural convictions, which were confirmed by Mrs Masilo,
the
respondent’s traditional healer. Admittedly, apart from Mrs
Masilo’s testimony, the respondent adduced no expert
evidence
regarding the nature of her illness and its association with her
cultural convictions.
[23]
But that such belief systems exist and
are part of the culture - the customs, ideas and social behaviour -
of significant sections
of this country’s people is beyond
dispute. The courts have acknowledged this. Recently in Department of
Correctional Services
v Popcru
[5]
this court had to consider the dismissal of two employees of the
department for refusing to cut off their dreadlocks. They had
worn
them, after being refused permission to do so, to obey their
ancestors’ call to become traditional healers in accordance
with their Xhosa culture. The evidence was that they would wear the
dreadlocks temporarily and shave them off at a cleansing ceremony
on
a specified date. The completion of the process would signify their
transition from initiates into recognised traditional healers.
The
department argued that dreadlocks violated its dress code, which also
required short hair, and undermined its objective to
engender
uniformity and neatness in the dress, appearance and discipline of
correctional officials. The court rejected the argument.
It held that
the employees’ sincerely held cultural beliefs were
constitutionally protected and in the absence of any evidence
that
the dreadlocks had any impact on their job performance or
unreasonably imposed a burden on the department their dismissals
were
automatically unfair.
[24]
Also
beyond dispute is that as part of these belief systems people resort
to traditional healers for their physical, spiritual and
emotional
well-being. The World Health Organisation (WHO) observes that up to
80 per cent of South Africans meet these needs through
the use of
traditional medicine, which include:
‘Diverse health practices, approaches,
knowledge and beliefs incorporating plant, animal and/or mineral
based medicines, spiritual
therapies, manual techniques and exercises
applied singularly or in combination to maintain well-being, as well
as to treat, diagnose
or prevent illness.’
[6]
[25]
And
the WHO Centre for Health Development defines ‘African
Traditional Medicine’ as:
‘The sum total of all knowledge and
practices, whether explicable or not, used in diagnosis, prevention
and elimination of
physical, mental or societal imbalance, and
relying exclusively practical experience and observation handed down
from generation
to generation, whether verbally or in writing.’
[7]
[26]
In contrast to the approach of
conventional medicine which uses ‘material causation’ to
understand and treat illness,
traditional medicine generally looks
towards the ‘spiritual’ origin, which includes
communication with the ancestors,
for this purpose.
[8]
Their methods of diagnosis and treatment are completely different and
understandably their respective adherents would each be sceptical
if
not completely dismissive of the other.
[27]
Our courts are familiar with and
equipped to deal with disputes arising from conventional medicine,
which are governed by objective
standards, whereas questions
regarding religious doctrine or cultural practice are not. Courts are
therefore unable and not permitted
to evaluate the acceptability,
logic, consistency or comprehensibility of the belief. They are
concerned only with the sincerity
of the adherent’s belief, and
whether it is being invoked for an ulterior purpose. This of
necessity involves an investigation
of the grounds advanced to
dem
onstrate that the belief exists
.
[9]
[28]
Once
it is accepted that the respondent experienced visions of her
ancestors and used traditional healing methods because of sincerely
held cultural beliefs, as the commissioner correctly found that she
did, the line of questioning he pursued with her and Mrs Masilo
regarding the possible consequences had she not attended the course
was not only understandable, but unavoidable. 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.
[10]
The commissioner’s inquiry thus sought to determine whether the
respondent was justified in failing to obey the order.
[29]
The evidence of the respondent and Mrs
Masilo revealed that the respondent had a fearful apprehension of
suffering serious misfortune
if she failed to respond to the call of
her ancestors to attend the course; hence her refusal to report for
duty. Before us it
was contended that the respondent was not honest
in relying on the note from the traditional healer in her claim to be
ill and
attempting to justify her refusal to obey the order. The
difficulty with this submission, as I have mentioned earlier, is that
this evidence went unchallenged. It follows that the criticism of
counsel for the appellant that the commissioner misconstrued the
nature of the inquiry has no merit.
[30]
It is also significant that Mr Walter 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.
[31]
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.
[11]
But that was not the situation in this case
[32]
There is one aspect of the commissioner’s reasoning that
was incorrect: he impermissibly attempted to explain the meaning of
traditional healing by embarking on a biblical discourse and equating
the concept with a biblical parable. Secular authorities,
including
courts and tribunals, should avoid attempting to resolve civil
disputes by applying reasoning that involves interpreting
and
weighing religious doctrine. This criticism notwithstanding the
commissioner’s conclusion that the respondent was justified
in
disobeying the employer’s instruction is supported by the
evidence. The LAC was therefore correct to dismiss the appeal
[33]
It
follows that the appeal must fail. Following the CCMA hearing, two
courts told the appellant that its appeal had no merit, although
no
cost order was made against it. But the appellant persisted with a
further appeal to this court. In these circumstances it is
appropriate that costs should now follow the result.
[34]
The
following order is made:
The appeal is dismissed with costs, including
the costs of two counsel.
A
CACHALIA
JUDGE
OF APPEAL
APPEARANCES
For Appellant: H v R Woudstra SC
Instructed by:
Louw Pienaar Attorneys, Pretoria
Naude’s Attorneys, Bloemfontein
For First Respondent: N A Cassim SC (with him F A
Boda and S Tilly)
Instructed by:
M S Molebaloa Inc, Pretoria
Mthembu & Van Vuuren Inc, Bloemfontein
[1]
South African Commercial and Catering
Allied Workers Union.
[2]
A
defect referred to in subsection (1), means- (a) that the
commissioner- (i) . . .
(ii)
committed
a gross irregularity in the conduct of the arbitration proceedings;
or
(iii)
.
. .
b
. . .
[3]
Herholdt
v Nedbank
2013 (6) SA 224
(SCA) para 25.
[4]
Ibid.
[5]
Department
of Correctional Services v Popcru
2013 (4) SA 176
SCA.
[6]
Marlise Richter ‘Traditional Medicines and Traditional Healers
in South Africa’ (2003) at 6 referring to ‘Traditional
Medicine Strategy’ 2002-2003, World Health Organisation,
WH0/EDM/TRM/2002.1, Geneva, p. 7.
[7]
Marlise
Richter ‘Traditional Medicines and Traditional Healers in
South Africa’ (2003) at 7 referring to ‘Planning
for
cost-effective traditional medicines in the new century’ - a
discussion paper, WHO Centre for Health Development. Accessible:
http://www.who.or.jp/tm/research/bkg/3_definitions.html
[8]
F Jolles and S Jolles.
Zulu
Ritual Immunisation in Perspective in Africa 70(2), 2000 p 238f.
[9]
Cf
Christian
Education
SA
v Minister of
Education
1999
(4) SA 1092 (SECLD) 1100-1101.
[10]
M
S M Brassey, E Cameron, M H Cheadle, M P Olivier The New Labour Law
430-431.
[11]
NUM & another v Samancor Ltd (Tubatse
Ferrochrome) & others
[2011] 11 BLLR 1041
(SCA) para
[12]