Confusion abounds as regards whether employers are required to accept medical certificates from traditional healers. The causes of this confusion are as follows:
- Firstly, the Traditional Health Practitioners Act No. 22 of 2007 was signed into law in 2008
- Secondly, the Traditional Health Practitioners Council (THPC) constituted in terms of this Act has already been set up
- Thirdly, the Supreme Court of Appeal’s decision in the Kievits Kroon/ Mmoledi case discussed below has given the impression that employers reject traditional healer certificates at their peril.
On 26 July 2016 Mr Bruce Mbedze, Department of Health Official confirmed that:
- While the THPC has been set up it has not yet begun registering traditional healers
- The THPC will not begin with such registrations until the regulations attached to the Act have been finalised and brought into force.
- It will take several weeks before an announcement in this regard can be made.
- In the case of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and others [2014] 3 BLLR 207 the Supreme Court of Appeal pronounced unfair the dismissal of an employee who left work to go and train as a traditional healer.
In this case the employee, a chef with supervisory status, was granted one week’s unpaid leave to undergo a traditional healer’s course. The employee furnished the employer with a certificate from a traditional healer indicating that the employee needed to attend the course due to her own unwell mental state.
The employee did not return to work at the end of her week of leave and was dismissed. A CCMA Commissioner found that the employee was genuinely ill and ruled the dismissal unfair. On review, the Labour Court agreed.
On appeal the LAC found that:
- it was apparent from the records of both the disciplinary inquiry and of the arbitration hearing that the employee believed she was ill.
- management understood the cultural significance of the employee’s condition.
- it was beyond dispute that the employee’s beliefs are part of the culture of about 80% of the country’s population, and many resort to traditional healers for their physical, spiritual and emotional wellbeing.
- The courts are equipped to deal with conventional medicine, but not with religious doctrine and cultural practices.
- the employee’s claim that she would suffer some serious misfortune if she did not undergo the training had gone unchallenged by the employer.
- absence from work without authority, even if contrary to an employer’s express instruction, is excusable if the absence was justified and reasonable.
- management could have discussed with the employee some alternative to accommodate her.
The appeal was dismissed with costs.
It is clear that this finding causes severe problems for those employers unable or unwilling to grant leave to employees for reasons related to traditional medicine. However, it is my view that the Kievits Kroon/Mmoledi decision did not focus on the issue of whether employers must accept traditional healer certificates. With respect, the Court evaded the question of the validation of the traditional healer’s ability to diagnose illness and, instead focussed mainly on the arguments that the employee genuinely believed she was ill and that the employer should have recognised this as a satisfactory reason for her absence.
The employer lost the case not because of any finding that traditional healer certificates must be accepted, but rather because the courts were convinced that the employee believed she was ill and therefore did not deserve to be fired.
The above factors confirm for me that:
- Traditional healers are not yet registered in terms of the Act and are therefore not yet able to issue medical certificates in terms thereof
- The Kievits Kroon/Mmoledi decision does not prescribe that employers must automatically recognise and accept traditional healers’ certificates.
In my view employers should:
- Do nothing to give the impression that they or their employment policies accept certificates from any source not proven to be genuine or that does not have the medico-legal competence to diagnose and treat illness
- Base their decisions as regards the recognition of each individual certificate not on whether traditional healing is acceptable in our society but on whether the professed healer has been proved to be competent to diagnose and treat illness
- Give careful consideration, when assessing mitigating circumstances, to whether it accepts that the employee truly believes that he/she was ill or that he/she was in danger.
- Be able to support any rejection of any claims made by employees relating to alleged illness or related matters
- Make no decisions with regard to the above points before consulting with a reputable labour law practitioner.
To book for our 22 September 2016 seminar in Johannesburg on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on ronni@lbourlawadvice.co.za or 0845217492.
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website address: www.labourlawadvice.co.za.
