15 October 2021
It is becoming increasingly common amongst employees to seek traditional treatment for their ailments from a traditional healer or “sangoma”, in place of standard medical treatment. The Basic Conditions of Employment Act, however, in Section 23 governing the requirements for proof of incapacity does not accommodate for such. Employers are therefore left at an impasse when it comes to respecting the cultural beliefs of an employee for seeking traditional treatment, while fairly applying the law as it relates to sick leave.
To ascertain the correct way to navigate this, we must first determine who is considered a medical practitioner, per Section 23(2). On review of legislation in this regard, the following are considered medical practitioners whose certificates must be accepted by employers as proof of incapacity:
- Any medical doctor with a recognised MBChB degree;
- Any dentist;
- Any psychologist with a Masters degree in Educational, Counselling or Clinical Psychology;
(NOTE: all three of the above must be registered with the HPCSA in order to be recognised as a medical practitioner).
- An Acupuncturist;
- An Ayurveda practitioner;
- A Chinese medicine practitioner;
- A Chiropractor;
- A Homeopath;
- A Naturopath;
- A Osteopath;
- A Phytotherapist; or
- Unani-Tib practitioner.
(All of which must be registered as practitioners with the Allied Health Service Professions Council in order to be recognised as a medical practitioner).
Government attempted to introduce the Traditional Health Practitioners Act 22 of 2007 in order to legitimise the practice of traditional healers, in accordance with the Constitutional right to freedom of religion, belief and opinion. This, however, is yet to be promulgated in full and therefore does not provide traditional healers with “medical practitioner” status.
While some bargaining councils (such as the Metal and Engineering Industries Bargaining Council) make provision for the acceptance of traditional healers being accepted as medical practitioners provided that they are registered with an appropriate regulatory body set up by government, no such body exist any longer, despite various attempts being made to establish such.
A traditional healer therefore does not fall within any of the above categories and is therefore not considered a medical practitioner as stated in Section 23 of the Act. It therefore follows that an employer is under no obligation to accept a certificate of incapacity issued by a traditional healer and the period of absence should be regarded as unpaid.
Employers are cautioned, however, in how they handle employees who wish to seek traditional treatment as an alternative or claim to ail from “spiritual illnesses”.
In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others [2014] 3 BLLR 207 (SCA), the Supreme Court held that the employee had been unfairly dismissed after she had refused to obey her employer’s instruction to return to work after a period of unpaid leave, during which she was training to be a traditional healer, owing to the fact that she sincerely believed her health to be at significant risk if she did not complete her training.
In Building Construction & Allied Workers Union on behalf of Zondi and Kusile Civil Works Joint Venture (2013) 34 ILJ 2395 (BCA), an employee was dismissed for unauthorised absenteeism after seeking treatment from a traditional healer. The arbitrator in the matter found that the employee had been unfairly dismissed as the reason for his absence was justifiable as it relates to his Constitutional right to freedom of religion and culture.
In conclusion, while seeing a traditional healer does not qualify an employee for sick leave or permit them to take any periods of sick leave due to incapacity, it is important that the employer remains sensitive to the religious and cultural beliefs of its employees and gives the appropriate consideration to such. Moreover, the employer’s leave policies should provide for the non-acceptance of traditional healer certificates and include the requirements for unpaid leave.
Because of the sensitive nature of traditional healers, clients are encouraged to contact Invictus for guidance on managing this process for the best possible outcome.
Invictus Group is able to assist companies with the necessary advice so that all procedures and legalities are complied with. Contact Invictus Group on 0861 737 263 for us to assist you.
