South Africa is known as the rainbow nation with eleven (11) official languages and more than fifteen (15) different cultures. This combination of diversified individuals often causes tension and conflict between the employer and employees in the workplace.

In the recent matter of Toyota South-Africa Motors (PTY) Ltd v NUMSA obo Njilo and Others (D692/19) 2022, the employer has a written leave policy in the workplace that provides for inter alia compassionate leave in respect of the death of “immediate family” members. In the written policy, immediate family is indicated as “husband, wife, grandparents, father, mother, father-in-law, mother-in-law, sister, brother, brother-in-law, sister-in-law, child, and grandchildren”. The employee Mr Njilo was dismissed for misconduct in the form of dishonesty in that he claimed paid leave in respect of the above-mentioned policy for the death of his son and mother, which turned out to be his brother’s son and his late father’s second wife.

In the arbitration, Mr Njilo stated that in the Zulu culture, a man assumes responsibility for his deceased father’s wives and the children of his deceased brother. Mr Njilo heard from a colleague that one could apply for leave when a family member dies and that he had been unaware of the intricacies of the compassionate leave policy. The arbitrator found that the sanction of dismissal was grossly inappropriate considering the case’s unique circumstances and found no dishonest intent and no real breakdown of the trust relationship, and held the dismissal to be unfair. The matter was then taken on review to the Labour Court, where the arbitrator’s finding was upheld.

The above is further supported by the case of Building Construction & Allied Workers Union of Zondi and Kusile Civil Works Joint Venture (2013) 34 ILJ 2395 (BCA), where the arbitrator found that the reason for the employees’ absenteeism in going to a traditional healer was a justifiable reason since it was inherently linked to the employee’s culture.

From the case law discussed above, it is clear that South African Courts are in support of employees and their cultural and religious beliefs. Therefore, it is essential for employers to consider their employees’ cultures and further educate their staff and themselves on the different cultures in the workplace. Further to this, in disciplinary hearings, employers should establish if there was dishonest intent from an employee and if the trust relationship was irrevocably broken before considering dismissing an employee, as such considerations could play a vital role in the outcome of the case.

Tips for employers to consider:

  1. Employers should ensure that policies are regularly updated and explained in the workplace to ensure that employees understand the content of the policies;
  2. Employers should have regular meetings with staff where policies are explained, especially if new policies are introduced in the workplace;
  3. It is advisable that the employer ensures that employees sign an attendance register of the meeting as mentioned above to confirm that the employees are aware of the new policies and understand the same.

It is essential for employers in respect of matters regarding cultural and religious beliefs to consider each case on its own merits and give the situation the respect it deserves. Employers should consult and obtain proper advice when dealing with misconduct relating to cultural and religious beliefs.

Article by: Dirk Hamman
Dispute Resolution Official – CEO Klerksdorp