When the Ancestors Call
One of South Africa’s unique features is its diversity which is protected by our Constitution and labour legislation. It would be naïve to think that this does not pose any challenges or problems. Intolerance of people’s difference has over the ages led to conflict, sometimes with tragic consequences.
Ancestors at Work
The Sunday Tribune of 6 July 2014 carried an interesting article of the case of a forklift truck driver, Nhlanhleni Mbokazi who was in dispute with his employer, a logistics company over a ruling that he must wear a hardhat while operating his forklift. Mbokazi claimed to be a sangoma (diviner) and that his ancestors (amadlozi) had instructed him that he must not cover his head. He claimed that previously his employer had not compelled him to wear a safety hat. After being instructed to wear a safety hat he had fallen out of favour with his ancestors.
On two occasions he had fainted at work and he claimed that wearing the helmet caused the collapses. He blamed his bosses for the religious transgression and his ancestors’ anger. “They insist that I wear a hard hat in spite of my telling them that it is against my calling as a sangoma. It is a violation of my religious beliefs.”
Mbokazi sought relief from the Equality Court hoping it would compel his employer to understand his beliefs. The Equality Court failed to resolve the matter and ruled that it should be dealt with by the Labour Court. The company had not at the time of the report instituted disciplinary action against Mbokazi, so it remains to be seen what will happen. In its affidavit to the Equality Court, the employer responded that:
It was necessary for Mbokazi to wear a hard hat as he was lifting pallets of glass bottles.
- Medical reports submitted by Mbokazi were not detailed enough to establish whether the hard hat had cause his headaches.
- The company’s doctor had determined that Mbokazi’s headaches were not caused by the hard hat.
- It had CCTV footage of Mbokazi ‘faking an attack’ when wearing the hard hat.
This case illustrates the dilemma employers face in South Africa. Where do you draw the line? Employers have a duty to ensure that their workplaces are safe and that employees follow safe working practices. Failure to wear prescribed safety gear is a disciplinary offence, so the employer will be within its rights to insist that the employee comply with the instruction. If he refuses to do so that is a dismissible offence. It remains to be seen what will happen.
It is encouraging to note that the employer concerned has not rushed into a decision and is obviously considering its options. These could include:-
- Consulting with the employee and his union (if he is a union member) to see if a practical solution can be found.
- Giving him a formal written instruction to wear the hard hat. This must specify the reasons for the instruction.
- Obtaining specialist medical advice from at least two specialists. This will either prove his claim to be correct, establish whether he has an unknown medical condition or prove that he is able to wear the hard hat and will counter his claim that it is the cause of his headaches.
- Asking the CCMA to provide a commissioner to mediate the dispute and to provide an advisory award. (This will give both parties an indication of the likelihood of success should the case be arbitrated.)
- Negotiating with the employee and his union to contract the CCMA to do a pre-dismissal arbitration.
- Issuing him with an ultimatum to wear the hard hat, followed by notice to attend a disciplinary enquiry.
- Ensuring that a competent chairperson with an understanding of African beliefs chairs the subsequent disciplinary enquiry.
- Retrench him for operational requirements after consultations have been exhausted.
No one can be expected to know all answers in these situations. It is for this reason that it is important to get professional advice from a legal and cultural/religious point of view before proceeding. Download a free copy of our e-book on Traditional Healers from http://localhost/wordpress/docs/traditional-healers-new.pdf
For more information on B&A’s Championing Diversity and accredited disciplinary training courses and its IR/HR consulting services, contact your local B&A office at Durban (031-3094627), Johannesburg 0861-474722, Cape Town 021-5270044, Port Elizabeth 041-3682019, Kokstad 039-7271773, Margate 039-3122698, Richards Bay 035-7531255 or click here