Toyota Versus Numsa J CCMA And Njilo

A dismissal based on a written leave policy which provides inter alia for compassionate leave in respect of the death of immediate family members is declared substantively fair.

1. The Basic Conditions of Employment Act (“the Act”) regulates family responsibility leave as entrenched in section 27(2)(c)(i) and (ii). It implores employers to grant leave to their employees upon the birth of their children and death of their immediate family members. The Act entitles the employer to request proof of the event for which the family responsibility leave is sought.
2. The purpose of this type of leave is to allow employees to deal with sensitive issues that occur fortuitously. Employers are not compelled to have policies that relate to such issues, however, when policies are introduced, they should be in line with the Act and accordingly explained to the employees to ensure that they are properly applied.
3. In a recent judgment handed down by the Honourable Whitcher J, a dismissal premised on a written leave policy which provides inter alia for compassionate leave in respect of the death of immediate family members was declared substantively unfair.
4. In this case, the employer, Toyota had a written leave policy which provides for compassionate leave in respect of the death of “immediate family” members defined in the policy as “husband, wife, grandparents, father, mother, father-in-law, mother-in-law, sister, brother, brother-in-law, sister-in-law, child and grandchildren.” In addition, the employee is required to provide “a copy of the death certificate of that family member, and in certain cases, an employee may be required to provide an affidavit indicating the relationship between the employee and the deceased person.”
5. The employee, Mr Njilo, was dismissed for alleged dishonesty and being duplicitous in requesting leave for family members who are not ordinarily referred to and/or accepted as one’s immediate family. The matter was referred to the CCMA and upon arbitration, an award was issued in favour of the employee.
6. 6During arbitration Mr Njilo contended that he only knew from another employee that they could apply for leave upon the death of their family members and that the policy was not explained and/or explained with sufficient clarity. He further argued that he was unaware that compassionate leave applied to the exclusion of family members, who in Zulu culture, are regarded as immediate family members.
7. He had requested and was granted compassionate leave for the deaths of his nephew and his father’s second wife whom he regarded as his mother and son, respectively. He contested that according to Zulu culture, a man assumes responsibility for the care of the above persons as though they were his own. Further that there is no distinction between them and persons who are ordinarily accepted as their mother and/or son whether by biology, adoption and/or societal standards.
8. His leave was approved by his Zulu speaking team leader and when he requested same, he did not conceal his relationship with the deceased’s. In summary, the arbitrator found no dishonest intent on the part of Mr Njilo. The arbitrator further found that the sanction of dismissal was grossly inappropriate ‘given the unique circumstances of the case”, his length of service at the time and his unblemished disciplinary record.
9. The employer brought a review application of the award on, amongst others, the ground that the arbitrator “based her award on matters that occurred to her when she was writing the award, but that the parties had no opportunity to address, in respect of her view on isiZulu cultural norms and beliefs.” The Court found that this ground had no merit given that the matter of cultural norms was raised by Mr Njilo during his evidence. Whilst the arbitrator may have expanded on the matter in her award, but there was no show in both the application and the award that the outcome of the award had turned on that. The next ground of review concerned the arbitrator’s factual findings regarding Mr Njilo’s knowledge of the leave policy and his relationship with his nephew. However, the Court found that there was no demonstration of a material misdirection. The award in fact clearly took into account the conflicting versions before the arbitrator and her reasons provide a reasonable route leading to the conclusion. The last ground of review challenged the arbitrator’s finding that the sanction was inappropriate which similarly failed based on his seniority, length of service and unblemished disciplinary record and the fact that the evidence did not demonstrate an intentional manipulation by Mr Njilo to get compassionate leave.
10. The review application was dismissed, and it was held that the arbitrator “did not commit any reviewable irregularity in her assessment of the evidence of her conduct of the proceedings”.
11. In light of the finding at arbitration that was later upheld by the Labour Court on review, employers should caution against ambiguous policies and must ensure that their employees are well versed with policy provisions irrespective of how trivial and/or apparent they may appear to be, especially given that “there are cultural differences where it comes to who is viewed as family, one would have thought that the policy on compassionate leave would have been better published and explained.”
12. 12. Furthermore, with further consideration, it is a call for employers not to rigidly apply the provisions of the Act and apply the legislation with consideration and regard to the ever-changing circumstances and the inclusion of the accepted African as well as other customs as and when necessary.

By Karabo Tsopo, Candidate Legal Practitioner, Pretoria
Checked by Manisha Maganbhai-Mooloo, Head of Litigation, Pretoria