In the recent Labour Court matter of Toyota South Africa Motors (Pty) Ltd v NUMSA obo Njilo and Others (D 692/19) [2022] ZALCD 12, the employer had a written compassionate leave policy 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, grandchildren.”

It further set out that an employee “must 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”.

Case Study

It came to the employer’s attention that the employee claimed compassionate leave for the death of his “mother/s” in 2013 and 2014 and the death of his “son” in 2015. The “son” was the employee’s late brother’s son, and the “mother/s” was his late father’s second wife and his aunt. Explained in terms of the employee’s culture, he regarded the son and mother/s as his family. He understood the policy to state that one can claim compassionate leave when a family member dies.

As a result, the employee was charged with and dismissed for dishonesty because he provided false information about his relationship to the deceased person/s, resulting in the employee being paid for the compassionate leave he was not entitled to.

The Arbitrator accepted the employee’s version, in that he had been “unaware of the intricacies of the compassionate leave policy, particularly that it did not cover people the employee regarded in Zulu culture as his “immediate family”, “mother” and “son”.” In the Zulu culture, “a man assumes responsibility for his deceased father’s wives and the children of his deceased brother.” The employee furthermore did not conceal his relationship with the deceased when he requested leave from his Zulu-speaking group leader.

Court finding and company policy

The practice within the company was that production line employees (as in the case of the employee) would approach the group leader to ask for leave which in turn completes the application form and forwards it to HR together with the death certificate for approval.

The Arbitrator found that there was no dishonest intent on the employee and that the sanction of dismissal was grossly inappropriate “given the unique circumstances”, the employee’s unblemished disciplinary record and 17 years of service. Furthermore, the Arbitrator found no evidence of a genuine breakdown in the trust relationship.

Labour court review

The matter was taken to the Labour Court for review. The Labour Court found that “The leave policy in question comprised some 35 pages, with compassionate leave situated in an obscure section in smaller writing.

Not one of the employer’s four witnesses averred that in some work session or personally, the employee was given a copy of the policy or that its contents were properly explained to him or the employees. Given the common knowledge that there are cultural differences regarding who is viewed as family, one would have thought that the policy on compassionate leave would have been better published and explained.”

The Labour Court held that another Arbitrator could have easily found that the sanction of dismissal was unfair given the employee’s position, his long years of service and his unblemished disciplinary record and the fact that the evidence did not demonstrate a contrived and devious manipulation by the employee to achieve compassionate leave. It was further held that there was no evidence that the trust relationship was destroyed by the employee’s conduct, and the review was dismissed.

Employers should ensure that their leave policies are explained and that employees understand them, especially in our broad diversity with various cultural differences. An employee can easily interpret a policy differently and is not necessarily dishonest when deviating from it.

For any assistance relating to your policies, please do not hesitate to contact Invictus Group.