With 11 official languages and practically 56 million residents, South Africa is a real melting pot of various cultures, traditions and beliefs. Our nation’s wealthy range raises attention-grabbing and complicated questions from an employment perspective. Though the Structure protects range, it’s typically tough for employers, particularly entrepreneurs, to align their enterprise wants with the cultural, spiritual and conventional beliefs of their workers. Luckily, our courts have begun to offer steerage as to take care of this potential battle within the office. We take care of two such instances beneath.
The worker who sought to turn out to be a sangoma: Kievets Kroon Nation Property (Pty) Ltd v Mmoledi and others  1 All SA 636 (SCA)
The worker in query sought one month of unpaid go away to attend a ritual ceremony for sangoma coaching. She submitted a certificates from a standard healer (and different supporting paperwork) to substantiate her request. The worker additionally knowledgeable the employer that this was a calling from her ancestors and that if she didn’t fulfil the request, she would die. The employer refused the request.
However, the worker went on the coaching with out permission and he or she was subsequently charged with insubordination and absence from work and thereafter dismissed.
The worker didn’t argue that she was sick within the standard sense. She stated that, owing to her cultural beliefs, her ancestors had known as her to endure coaching to turn out to be a sangoma. The attention-grabbing query earlier than the courtroom: Was the worker’s absence from work justifiable?
This case reveals how employer and worker pursuits typically battle. On the one aspect, you’ve gotten an employer who’s attempting to run a enterprise whereas on the opposite, you’ve gotten an worker who believed that her ancestors have been summoning her to turn out to be a sangoma.
The Supreme Courtroom of Enchantment confirmed that South Africans have totally different perception programs which type a part of their tradition (that’s, customs, concepts and social behaviour). A courtroom (on the whole) usually are not geared up to judge the acceptability or consistency of a perception – it may solely scrutinise the sincerity (or reasonableness) of an worker’s perception. On this case, the courtroom discovered the worker’s perception to be cheap.
Associated: What The Regulation Says About Worker Go away And Absence
Conventional dispute decision practices verse disciplinary codes: Concord Goldmine Firm Restricted v Raffee N.O. and Others (JR1205/15)  ZALCJHB 169 (eight Could 2018):
An worker (Mr Ndele) was assaulted by a fellow worker (Mr Ndabeni) at a hostel bar. Mr Ndele fractured his leg in the course of the assault. Though this case is said to Mr Ndabeni’s assault by of Mr Ndele, it considerations a unique worker: Mr Puzi. Mr Puzi was a colleague and pal of Mr Ndabeni and from a cultural perspective, Mr Puzi shaped a part of Mr Ndabeni’s “delegation”.
After being launched from hospital, Mr Ndele knowledgeable the employer’s mine governor concerning the assault. Mr Ndabeni (and his delegation) then, when it comes to the Mpondomise custom, visited Mr Ndele to say sorry and to supply financial compensation. Nonetheless, the events couldn’t agree on the quantity of compensation. Mr Ndele then formally reported the assault incident to the employer.
Resulting from his involvement in what the employer seen as behind-the-scenes negotiations, the employer charged Mr Puzi with bribery and dishonesty, and the employer later dismissed him.
The matter posed two attention-grabbing questions:
- In a culturally various office, to what extent ought to the employer embrace workers’ particular person cultural norms and traditions?
- Would the follow of these cultural norms and traditions prohibit the employer from disciplining workers?
An knowledgeable (on African norms) submitted, in courtroom, that the follow of traditions can’t be used to defeat the ends of justice or conceal a transgression.
Nonetheless, the courtroom thought of the Ubuntu strategy to battle decision and acknowledged that “ubuntu societies place a excessive worth on communal life, and sustaining constructive relations throughout the society is a collective process through which everyone seems to be concerned… if a person is wronged, she or he could rely upon the group to treatment the flawed”.
On this matter Mr Ndabeni (and his delegation) sought to make peace, by way of strategies of cultural battle decision, with Mr Ndele following the assault. Nonetheless, the employer seen the actions of the workers as constituting dishonesty and tried bribery. The courtroom disagreed, holding the claims to be unfounded. The next extract from the judgment is value noting:
Though employers might not be sure by the cultural traditions, they can’t merely ignore the truth of their existence, particularly in cases the place the cultural traditions are geared toward attaining societal good and usually are not in battle with the Structure… the place the perpetrator confirmed true regret and was prepared to advertise peace with the sufferer in accordance with their norms and traditions, the employer can be anticipated to earnestly contemplate identical in good mild.
Associated: Grasp The Ins And Outs Of South Africa’s Labour Legal guidelines
These instances present two overarching classes for employers and entrepreneurs:
- If workers present causes for absence from work that relate to cultural, spiritual and/or conventional beliefs, you need to rigorously contemplate these requests and, the place doable and cheap, be accommodative to such workers; and
- You should be cautious in making use of disciplinary codes in a blanket method, with out taking cognisance of workers’ cultural strategies of battle decision.
On the finish of the day, entrepreneurs should be cognisant of the truth that workers have their very own distinctive spiritual and cultural perception programs. Implementing an strategy that’s blind to this actuality could lead to employers treating their workers unfairly.