17 June 2022
There are many circumstances when an individual's religious observances, beliefs and viewpoints enter the workplace.
In the case of National Sugar refining and Allied industries Union obo Mngomezulu v Tongaat Hulette Sugar Ltd [2016] 11 BALR 11 BALR 1172 (NBCSMRI), a commissioner was assigned a very tough task - whether or not placing a black Vaseline-like substance on the door and tire of a colleague’s car amounted to an act of witchcraft intended to cause harm and, if so, whether or not the employer could dismiss an employee for having committed such an offence.
The main facts of the matter were the following: The employee placed a black Vaseline like substance on the tire of his Human Resources Manager’s (hereinafter “HR Manager”) vehicle. During the HR manager’s testimony before the commissioner, she testified that, despite being a Christian, when she discovered the substance she prayed because she believed the substance to be “muti”. Muti is a form of traditional medicine used for the purposes of healing or causing harm.
The HR Manager later consulted a Sangoma (traditional healer) and after having described the substance to her, identified it to have been muti. During the arbitration proceedings expert evidence of two Sangomas were introduced in order to determine whether the substance had indeed been muti. However, the commissioner ruled that the nature of the substance is of little importance. What is of importance is what the HR Manger perceived it to be and her reaction to it. It was further held that the act of witchcraft does not have to achieve its purpose for it to become an act of misconduct and that the mere use of muti to scare, intimidate or threaten another person is sufficient. To this end, the commissioner accepted that the conduct of the employee caused the HR Manager to feel scared and that the placement of the substance was an attempt to psychologically exploit her and create fear and panic in her for herself and her family. Accordingly, the commissioner held that the employee’s conduct amounts to serious intimidation, which cannot be tolerated in the workplace and justified a sanction of summary dismissal. This is because the employee’s conduct irreparably harmed the trust relationship between himself and a colleague with who he works intimately and, naturally, negatively affected the trust relationship between himself and his employer.
The Commissioner confirmed that Mr Mngomezulu’s dismissal was justified due to his “reprehensible” behaviour in attempting to use a shared cultural belief system to intimidate a colleague. “That is unacceptable in any workplace and will most definitively break down a relationship of trust and cordiality that exists between an employer and an employee and between an employee and his colleagues,” the Commissioner held.
This decision embraces the sentiments expressed by the Supreme Court of Appeal in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others 2014 (1) SA 585 (“SCA“). In this case, an employee was dismissed after submitting a traditional healer’s certificate, rather than a valid medical certificate, as justification for time taken off from work. The employee’s justification for her absence was that she received a ‘calling from her ancestors’ to become a traditional healer. The employee submitted a traditional healer’s certificate to substantiate upon her absence. The employer regarded the traditional healer certificate as ‘meaningless’ and dismissed the employee for her absence. The question became whether a traditional healer’s certificate is to be equated with a medical certificate for the purposes of sick leave.
The matter proceeded all the way to the SCA, which dismissed an appeal brought by the employer. The SCA held that, had the employer appreciated the nature and purpose of the traditional healer’s certificate and its import, it could have accommodated the employee’s request.
While witchcraft and traditional rituals may be viewed with scepticism from a Western perspective, its existence is widely believed by many persons in South Africa and is actively being practiced within South Africa.
From the recent case law, it is clear that witchcraft may constitute gross misconduct relating to intimidation and even insolence in cases where the “victim” does not necessarily believe in witchcraft but believes the act was a threat or a form of intimidation. In the circumstances, employers must be aware of the religious practices of their employees, the effect that such practices may have on working relationships within the workplace and how best to manage such practices.
