Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209 (SCA)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers […]

Introduction

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others is a case decided in the Supreme Court of Appeal of South Africa. I think is relevant to the Zimbabwean Jurisdiction even though its binding effect in our jurisdiction is questionable. The case deals with sick notes that emanate from traditional healers.

Summary of Facts

This is an appeal against the decision of the Labour Appeal Court. The matter was between Mmoledi who as in the employ of Kievits Kroon Country Estate (Pty) Ltd. Between the month of April and May 2007, the employee, Mmoledi, requested to have her shift adjusted to accommodate her application for sick leave. She needed to attend a course as a traditional healer. The application for leave was granted. It is important to note that the course emanated from the visions that she reportedly saw which visions were interpreted as a calling for her to become a traditional healer. 

On 1 June 2007 she approached her supervisor with a similar request. This time around she required a period of 5 weeks to attend the course. This request was made at a time when she had exhausted all her leave days. Her supervisor was willing to accommodate her request albeit for a shorter period of week. Mmoledi insisted that she required more time. To support her request for more time off she brought a note from her trainer which note indicated that she needed more than one week. The documents were left on her supervisor’s desk as the supervisor was not in the office on the day the papers were brought to the company.

The employee subsequently did not return to work within the period expected by her supervisor. The employer proceeded to institute disciplinary proceedings noting that the employee had breached work place rules. A disciplinary authority appointed in terms of the company rules found that the employee was guilty of misconduct and prescribed her dismissal from employment as the appropriate penalty. In dismissing her the authority concluded that her period of absence could not be construed as Sick Leave.

Aggrieved by the decision, the employee appealed to the Commission for Conciliation, Mediation, and Arbitration (CCMA). The decision to dismiss her was set aside on the basis that her absence from work was due to a situation which was beyond her control. The employer was aggrieved by the decision of CCMA and appealed to the Labour Appeal Court were the court concluded that the decision by CCMA was correct.  The Supreme Court of Appeal was thus seized by an appeal by Kievits Kroon Country Estate (Pty) Ltd which emanated from the latter’s dissatisfaction with the conclusion reached by the Labour Appeal Court.

The issue in dispute

The major question was whether the commissioner of CCMA properly applied the principles applicable to an application for unpaid leave for issues unrelated to the contract of employment between the parties.

Further, the question was whether a traditional healer’s certificate could be construed as a medical certificate for purposes of applying for sick leave.

A discussion of applicable labour law principles

The Supreme Court of Appeal noted that the employee genuinely believed that she was ill. This was because of the cultural belief that she was being called by her ancestors to become a traditional healer. The court proceeded to note that such cultural beliefs existed in the South Africa Society and have been recognized by the courts before. It went further to note that such beliefs were constitutionally protected.

It was also highlighted that it was beyond any dispute that people sometimes seek assistance from traditional healers once faced by similar situations. The court recognized that the employee was seeing visions and she made use of traditional healing methods because of her cultural belief. This evidence went on unchallenged.

The court concluded that the commissioner was correct in noting that the employee’s failure to report for duty was reasonable and that beyond her control. In the eyes of the Supreme Court of Appeal, the decision by the CCMA commissioner was correct.

Conclusion

The Supreme Court of Appeal concluded that the Labour Appeal Court was correct to dismiss the appeal.  It then proceeded to also dismiss the appeal with costs.

NB: This summary was submitted to the University of South Africa (UNISA) in partial fulfilment of the requirements for the Degree of Bachelor of Laws (LLB).

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SICK LEAVE & RETIREMENT ON MEDICAL GROUNDS

This article will provide a juxtaposition of the sick leave clauses in the Labour Act and the interpretations that have been fostered by courts in Zimbabwe and to a certain extent by South African Courts. It is hoped that by coming up with such a comparison the law on sick leave will be made clear […]

INTRODUCTION

Sick leave provisions in the Labour Act (Chap 28.01) are clear cut. This article will provide a juxtaposition of the sick leave clauses in the Labour Act and the interpretations that have been fostered by courts in Zimbabwe and to a certain extent by South African Courts. It is hoped that by coming up with such a comparison the law on sick leave will be made clear. The section in question is section 14 is it is broken down into 5 subsections that will now be examined.

SECTION 14 (1)

Section 14 (1) provides as follows:

“Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions”.

This provision provides parties to an employment relationship to come up with better conditions for Sick Leave. These better conditions can be found in a contract of employment or any other enactment such as a Collective Bargaining Agreement. Once the better conditions have been agreed upon an employer is bound by the latter. These better conditions take precedence over section 14.

In Zimasco v Maynard Marikano[i] the employer and employee agreed to better terms compared to the ones provided in section 14. The employer then deviated from the provisions set out in its policies. The Supreme Court in this matter did not tolerate such deviation from set standards and had no option but to rule that:

“In the circumstances the decision by the appellant to terminate the appellant’s contract of employment without reference to its own policy and procedures was irregular. The finding that there was an irregularity in the termination of the respondents’ contract of employment cannot therefore be impugned.”

Zimasco v Maynard Marikano points to the fact that employers can provide for better sick leave conditions in their policies. These policies are binding and cannot be circumvented for the sake convenience.

SECTION 14 (2)

Section 14 (2) reads:

During any one-year period of service of an employee an employer shall, at the request of theemployee supported by a certificate signed by aregistered medical practitioner, grant up to ninetydays’ sick leave on full pay.”

In Thandekile Zulu v ZB Financial Holdings (Private) Limited[ii] the phrase “one-year period of service” was construed as a period of 12 months from the date the employee fell sick.

The section makes it mandatory to have the request for sick leave supported by a certificate that would have been signed by a registered medical practitioner. The term “registered medical practitioner” poses no challenges as these are health personnel registered in terms of the requisite laws of Zimbabwe.

Problems may arise when an employee brings in “sick note” from an unregistered traditional healer. In the South African case between Kievits Kroon Country Estate (Pty) Ltd v Mmoledi [iii]the Supreme Court of Appeal in South Africa argued that a note from a traditional healer ought to be construed as a sick note for purposes of sick leave. In explaining this position, the court remarked:

“The certificate from the traditional healer was considered ‘meaningless’ and was therefore rejected as proof of illness. But had he understood it to be equivalent to a medical certificate or tried to understand its import by asking the respondent to explain its meaning, instead of summarily rejecting it, he may well have accommodated her request”.

This South African decision may not bind Zimbabwean Courts. It may have persuasive effect on future judgements. This therefore means that practitioners must  trade with caution when dealing with “sick notes” emanating from traditional healers who are not registered.

SECTION 14 (3)

Section 14 (3) reads:

“If, during any one-year period of service of an employee, the employee has used up the maximum period of sick leave on full pay, an employer shall, at the request of the employee supported by a certificate signed by a registered medical practitioner, grant a further period of up to ninety days’ sick leave on half pay where, in the opinion of the registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.”

This section seems straight forward. Any employee can only be granted a further 90 days of sick leave on half pay if a medical practitioner is of the view that the employee will be able to refuse normal duty at the expiry of the 90 days. If the employee’s prospects of recovery are slim, then section 14 (4) will kick in and the employee will have to be retired on medical grounds.

SECTION 14 (4)

Section 14 (4) stipulates that:

“If, during any one-year period of service, the period or aggregate periods of sick leave exceed— (a) ninety days’ sick leave on full pay; or (b) subject to subsection (3), one hundred- and eighty-days’ sick leave on full and half pay; the employer may terminate the employment of the employee concerned”.

This subsection provides an employer with unfettered right to terminate a contract of employment upon the lapse of 90 days sick leave on full pay or the 180 days. This provision has been a subject of great controversy. In Zimasco v Maynard Marikano the supreme court remarked in its obiter dictum that section 14 (4) had far reaching consequences for the employee and as a result the audi alterum paterm rule had to be observed.

It is argued that the correct position is now found in Thandekile Zulu v ZB Financial Holdings (Private) Limited in which the court highlighted the current position as follows:

“In light of the above, I am of the view that the provision does not take away the employer’s unfettered discretion to terminate employment due to incapacity. It would be a gross miscarriage of justice to impose an onerous obligation on the employer where the clear language of the statute does not provide such an obligation.”

Section 14(4) does not therefore provide the employer with any other obligation when terminating a contract on medical grounds. The picture will be totally different if the employer has a sick leave policy that provides better conditions compared to the ones in the Labour Act.

SECTION 14 (5)

Section 14 (5) provides that:

“An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay”.

Section 14(5) applies when an employee has exhausted the sick leave days provided under section 14(3) as mentioned above. It is submitted that the section can only be raised if there is an opportunity for the employee to recuperate and resume normal duties.

SOURCES


[i] Zimasco v Maynard Marikano (SC 6/14)

[ii] Thandekile Zulu v ZB Financial Holdings (Private) Limited (SC 48/2018)

[iii] Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209 (SCA)

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