Employers are required to respect and honour the rights of their employees. However, in return, employees are required in terms of their employment relationship to offer their services and not be absent from work without leave. But how do these rights stack up when an employee claims their right to culture as justification for being absent from work? In this article, we take a look at a recent CCMA case that had to dissect this rather complex question.
In the CCMA case, the CCMA had to determine the fairness of a dismissal that occurred where an employee was absent without the employer’s leave for two weeks to attend a traditional initiation school.
The employee, employed as a branch manager, claimed that she had received permission to be away from work from her regional manager. Upon her return to work, the employee was subjected to a disciplinary hearing for being absent without permission and was consequently dismissed. Aggrieved by the dismissal, the employee referred an unfair dismissal dispute to the CCMA where she claimed, inter alia, that the employer had undermined her culture and life as she had provided proof of her whereabouts when she returned to her work. Therefore, her dismissal was unfair.
The facts before the Commissioner revealed that the employee had requested leave from her regional manager, but it was rejected due to the fact that the policy of the employer did not allow for employees to take leave from 1 to 24 December unless exceptional circumstances existed.
After this conversation with her regional manager, the employee informed the manager about the reason for wanting to take leave, namely that she wanted to attend initiation school. The regional manager informed her that he would consult his divisional team and revert to her the following day. The regional manager however never reverted to her as undertaken and the employee, nevertheless continued to take her leave. The employee’s reasoning for this was that the regional manager never got back to her and she did not have time to establish whether or not her leave had been approved. She therefore assumed that since the regional manager never got back to her, her leave had been approved.
The Commissioner found that at the time the employee was absent from work, she did not have the necessary authority to take leave, despite her assumption that her leave had been approved, as the regional manager never reverted to her. A lack of an answer did not therefore translate into an approval of the leave.
Furthermore, the proof of the employee’s whereabouts from the traditional council did not suggest that the employee had been compelled to attend initiation for compelling reasons such as to save her life, and due to the employee’s length of service, she was well aware of the employer’s leave procedures. Accordingly, the Commissioner could not find that the employer undermined the employee’s culture and/or life and found her dismissal to have been fair. The Commissioner’s finding confirms that any exercise of an employee’s rights within the workplace must be subject to the reasonable policies and procedures of the employer. In this instance, the rights of the employee had not been bluntly trampled and the employee could have taken further steps to ensure that her leave request had been granted before just proceeding to accept that she was entitled to the leave and essentially taking the ‘law into her own hands’ despite having a justifiable reason for her leave.
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