lOMoARcPSD|11700591
Ezené Meyer 57624372
MRL 3702 Assignment 1
2022/03/08 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