TRADITIONAL HEALER ‘CERTIFICATES’ FOR SICK LEAVE
Ms Mmoledi, a senior chef at Kievits Kroon Country Estate, requested five weeks’ unpaid leave from her employer and provided two documents in support of her application. The first bore the name and contact details of a traditional healer and stated:
"This serves to certify that Johanna Mmoledi was seen by me on 13-01-07 and diagnosed to have perminisions of ancestors. He/she under my treatment from 13-01 to 8th July 2007. He/she will be ready to assume work on 8-07-2007."
The second letter was headed "Preparation of graduation ceremony of Johanna Maite Mmoledi" and read: "I hereby inform you of the graduation of the abovementioned patient. I am asking you to please give her days from the 4th of June to the 8th July 2007 to complete her initiation school final ceremony to become a traditional healer."
In support of her leave application, Ms Mmoledi said that she had been seeing visions of her ancestors and therefore needed the time off, as indicated in her traditional healer’s notes, in order to be healed. Ms Mmoledi’s leave application was, however, declined by the estate and her letters were not accepted by her employer on the basis that they were not from a medical doctor. Ms Mmoledi nonetheless took time off, albeit without authorisation.
She was consequently summoned to a disciplinary hearing which resulted in her dismissal. She referred an unfair dismissal dispute to the ccma where the arbitrator held that she was justified from staying away from work because "her absence from duty was necessitated by circumstances beyond her control." The estate sought to have the ccma award reviewed and set aside, but the Labour Court concluded that the award was well reasoned and therefore dismissed the application. The estate then approached the Labour Appeal Court (lac) for assistance.
The estate’s argument was that, in enacting the applicable labour laws, the legislature opted for standards more akin to western standards than to African culture. The estate argued that the commissioner shouldn’t have elevated the role of traditional healers to medical practitioners, notwithstanding the fact that the practices of traditional healers were not regulated by a professional council. In the estate’s view this could open the floodgates to malpractices that would turn the work environment into total disarray.
The Estate said that the commissioner discarded case law where it was held that a certificate issued by a traditional healer could not be regarded as a proper certificate which an employer should seriously consider when weighing the adequacy or otherwise of the reasons for the absence of an employee.
The lac, however, dismissed the appeal and held that the commissioner’s conclusions were supported by reasons, that the reasoning process could not be faulted, that the commissioner was alive to the issues and had properly applied his mind to the material before him. The lac further stated that the Constitution recognises traditional practices and beliefs and that others should not trivialise such beliefs but should accommodate them. The estate then took the matter on appeal to the Supreme Court of Appeal (SCA).
The SCA pointed out that the documents from the traditional healer were important because the argument proffered by the employee at the ccma was that the certificate should have been construed as a sick note equivalent to a medical certificate, while the employer’s view was that the employee’s reliance on the traditional healer’s note 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 (BCEA).
The SCA held that it was significant that the employer testified that it would not have dismissed Ms Mmoledi if she had produced a certificate from a medical practitioner, instead of the traditional healer, as proof of her illness. The SCA held that in the circumstances the employer regarded the certificate from the traditional healer as "meaningless" and therefore rejected it as proof of illness. The SCA held further that if the employer had understood the note to be equivalent to a medical certificate, or if the employer had tried to understand its import by asking the employee to explain the meaning, instead of summarily rejecting it, the employer may well have accommodated the employee’s request. The SCA therefore dismissed the appeal with costs. In light of this decision, employers can no longer exercise a blanket exclusion of certificates from traditional healers but each case must be considered on its own merits. Employers must therefore seriously consider and give weight to certificates of traditional healers produced by their employees for sick leave.
This is important in the context of recognising individuals’ constitutional right to practice religion. It may, however, present a challenge to employers to verify the authenticity of such sick notes as the Traditional Health Practitioner Council of South Africa is yet to become operative and traditional healers can therefore not yet register as members. Be that as it may, employers need to create their own systems for dealing with traditional healer certificates. This may include amending their sick leave policies in order to deal with this issue fairly.