Mbuso Gcwensa – Associate Attorney

Family responsibility leave in terms of Section 27 of the Basic Conditions of Employment Act 75 of 1997, is leave amounting to a total of 3 days in a leave cycle. To access these leave days, you must have been employed for 4 months and work at least 4 days a week for that employer.

An employee has access to this leave if the employee’s child is sick, or on the death of the employees’ parent (this includes adoptive parents), grandparents, child (including an adopted child), grandchild or sibling.

Recently, the Labour Court in Durban in the matter of TOYOTA SOUTH AFRICA MOTORS (PTY) LTD v NUMSA obo NJILO & OTHERS (D692/19) [2022] ZALCD 12 (14 JULY 2022) had to determine whether the decision of the Commissioner at the CCMA that dismissal of an employee was substantively unfair (for gross dishonesty. The CCMA had found that the dismissal of the employee was unfair, taking into account the length of service, a clean disciplinary record and the unique circumstances of the case.

The court found that the decision taken by the Commissioner at the CCMA was one of a reasonable Commissioner, and an arbitrator would have arrived at the same decision. The court analysed the intricacies of the employee’s culture as well as length of service (17 years) and previous disciplinary action (unblemished record since inception) before coming to this ruling.

In considering the employee’s culture it was noted that he applied for the leave through his senior colleague who was Zulu. The company could not have been unaware that the employee practised the isiZulu culture and accordingly, when he made the application for compassionate leave for the death of his ‘mother’ in 2013 and again in 2014 – the term ‘mother’ in the isiZulu culture could be, and was, used for both the employee’s late father’s second wife and the aunt. Further, 2015 when the employee made an application for leave for the death of his ‘son’, in isiZulu culture this could be used, and was, for his late brother’s son.

What has become clear from this matter is that when employers draft their employment and workplace policies they have to remember that these become incorporated into the employment agreement and more importantly, they should make no assumptions that all cultures will understand the policies in the same way.

In this matter, the employee’s subsequent appeal was successful mainly due to the fact that he proved that in his culture the terms would be transferred from his blood relative (as the employer intended) to the family of his departed father, where he had taken on the responsibility as though he were the blood relative.

In a culturally diverse country such as South Africa, employers might need to consider a rather more inclusive and/or descriptive approach with specific particularities in drafting policies. Judicial notice was taken of the need for employers to go beyond training and awareness of policy, suggesting  particularity in definitions being needed, to shed light on the specific intention and implementation of the policy, to avoid issues down the line.

Contact for further assistance if you find yourself in need of advice on policy drafting and/or training. We have solid experience in the employment law sector and strongly believe that with training, risks can be avoided.

#labourlaw #compassionateleave #employmentlaw #policydrafting #training #CCMA #thomsonwilks #thomsonwilksattorneys #thomsonwilksinc


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