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Ezené Meyer MRL 3702 2022/03/08
57624372 Assignment 1 Unique Nr:862870
Question 1:
In the Kievits Kroon Country Estate v Mmoledi, the employer being a company which offers
conference and leisure facilities, had dismissed an employee, working as a chef. The employee was
dismissed with reason being misconduct as she was absent from work without permission as well as
failing to follow instructions. The employee had used all her sick leave when she got a calling from
her ancestors that she had to attend a course on traditional healing over a three-week period. She
requested leave, but the employer could not afford her being absent for such a long period and
agreed to her taking one week of unpaid leave. While she was on unpaid leave, the employer
contacted her and informed her that her request for further leave has been denied. The employee
told the employer that she would not return and did not return to work.
The reason for the employee not returning to work was that she truly believed that failure to attend
could result in illness or death. The employee submitted a sick note from her traditional healer which
expressed the need for the employee to attend the course. The employer dismissed the employee
for misconduct and insubordination.
The legal issue at hand was whether an employee who has a genuine cultural belief that she should
attend a training course, which is unrelated to work or suffer an illness and/or death if she fails, can
be dismissed for misconduct if her application for leave was rejected by the employer and when
refusing a direct instruction to return to work?
The employee and the traditional healer gave an indication during arbitration as to why the
employee was absent from work, which stated that the employee’s life would have been in jeopardy
if she had not required the healer’s interference.
The arbitrator concluded that the employee had no choice but to seek the help of the healer, thus
justifying her nonattendance even when being divergent to what her employer had instructed. It was
also concluded that the employer did not suffer any lasting damage by the fact that the employee
was not present. Thus, the arbitrator ordered her reinstatement without back pay.
The matter then came before the Labour and the employer upstretched numerous grounds on which
the arbitrator’s award was then challenged. The employer alleged that the award was not justifiable
and that there was no coherent relation between the evidence before the arbitrator and the truthful
contemplations being key to the award.
The court determined that the award was that of a reasonable decision-maker.
On the appeal, amongst and based on the reasons the employer brought to light the Labour Court
failed to find that, in decreeing the Labour Relations Act 66 of 1995 and the Basic Conditions of
Employment Act 75 of 1997, the arbitrator presumed the role of the legislature by uplifting the part
of traditional healers to medical practitioners.
According to Section 23(1) and (2) of the Basic Conditions of Employment Act, an employer is not
obligated to pay an employee in terms of section 22, had the employee been away from work
without notice or permission, for more than two uninterrupted days, or on more than two instances
throughout a 2 – month period and, on request by the employer, does not provide a medical record
or certificate explaining that the employee could not attend work for the specific period due to being
sick or injured.
Such medical certificate must be delivered and signed by a medical practitioner or any other person
who is qualified to diagnose and treat patients, and such person must be registered with a qualified
board recognised by an Act of parliament.
The Supreme Court of Appeal determined the dismissal to be unfair and emphasized the importance
of taking into consideration the cultural beliefs of the employee as well as indicated that the
employee
Ezené Meyer MRL 3702 2022/03/08
57624372 Assignment 1 Unique Nr:862870
Question 1:
In the Kievits Kroon Country Estate v Mmoledi, the employer being a company which offers
conference and leisure facilities, had dismissed an employee, working as a chef. The employee was
dismissed with reason being misconduct as she was absent from work without permission as well as
failing to follow instructions. The employee had used all her sick leave when she got a calling from
her ancestors that she had to attend a course on traditional healing over a three-week period. She
requested leave, but the employer could not afford her being absent for such a long period and
agreed to her taking one week of unpaid leave. While she was on unpaid leave, the employer
contacted her and informed her that her request for further leave has been denied. The employee
told the employer that she would not return and did not return to work.
The reason for the employee not returning to work was that she truly believed that failure to attend
could result in illness or death. The employee submitted a sick note from her traditional healer which
expressed the need for the employee to attend the course. The employer dismissed the employee
for misconduct and insubordination.
The legal issue at hand was whether an employee who has a genuine cultural belief that she should
attend a training course, which is unrelated to work or suffer an illness and/or death if she fails, can
be dismissed for misconduct if her application for leave was rejected by the employer and when
refusing a direct instruction to return to work?
The employee and the traditional healer gave an indication during arbitration as to why the
employee was absent from work, which stated that the employee’s life would have been in jeopardy
if she had not required the healer’s interference.
The arbitrator concluded that the employee had no choice but to seek the help of the healer, thus
justifying her nonattendance even when being divergent to what her employer had instructed. It was
also concluded that the employer did not suffer any lasting damage by the fact that the employee
was not present. Thus, the arbitrator ordered her reinstatement without back pay.
The matter then came before the Labour and the employer upstretched numerous grounds on which
the arbitrator’s award was then challenged. The employer alleged that the award was not justifiable
and that there was no coherent relation between the evidence before the arbitrator and the truthful
contemplations being key to the award.
The court determined that the award was that of a reasonable decision-maker.
On the appeal, amongst and based on the reasons the employer brought to light the Labour Court
failed to find that, in decreeing the Labour Relations Act 66 of 1995 and the Basic Conditions of
Employment Act 75 of 1997, the arbitrator presumed the role of the legislature by uplifting the part
of traditional healers to medical practitioners.
According to Section 23(1) and (2) of the Basic Conditions of Employment Act, an employer is not
obligated to pay an employee in terms of section 22, had the employee been away from work
without notice or permission, for more than two uninterrupted days, or on more than two instances
throughout a 2 – month period and, on request by the employer, does not provide a medical record
or certificate explaining that the employee could not attend work for the specific period due to being
sick or injured.
Such medical certificate must be delivered and signed by a medical practitioner or any other person
who is qualified to diagnose and treat patients, and such person must be registered with a qualified
board recognised by an Act of parliament.
The Supreme Court of Appeal determined the dismissal to be unfair and emphasized the importance
of taking into consideration the cultural beliefs of the employee as well as indicated that the
employee
