“I have been struggling with bad dreams for many weeks, causing me to sleep badly. Nothing seems to help and it is affecting my work. On advice of my mother, I eventually visited our family sangoma, a traditional healer, who informed me that I am experiencing callings from my ancestors and that I will have to be booked off work for three weeks to undergo specific training to help the dreams stop. I am very anxious to address this issue, but my employer is refusing to accept the sick note of the sangoma. Can the employer refuse this?”
The above is a very relevant question given the broad diversity of cultures and traditional beliefs in our South African society, with many people regularly using traditional medicines and visiting traditional healers.
Sick leave is regulated by the Basic Conditions of Employment Act (BCEA) which determines that an employer is not required to pay an employee sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate which states that the employee was unable to work for the duration of the employee's absence on account of sickness or injury.
The BCEA further states that a medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. The question now is, whether a certificate from a traditional healer will qualify as a valid medical certificate for purposes of the BCEA.
In the recent case of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others the court had to decide whether a traditional healer’s certificate could be equated with a medical certificate for purposes of sick leave. An employee had been dismissed for misconduct for disobeying an instruction to report for duty and being absent from work without permission. The employee had applied for unpaid sick leave for a period of five weeks to attend a traditional healer’s course on the strength of a letter from her traditional healer which stated that she needed the requested time as she had an ancestral calling. The employer confirmed that they would have approved the leave if the letter was a medical certificate from a registered medical practitioner. Given that the employer had failed to consider the import of the letter and summarily rejected it, the court found against the employer.
This judgment, although not equating a traditional healer certificate with a medical certificate, does demand that employers not summarily dismiss all traditional healer certificates and that employers would be well advised to consider the merits of each request and look at creating a process for considering such requests.
Government has also enacted the Traditional Health Practitioners Act. Although not operational yet, this act is intended to serve and protect the interests of members of the public who use the services of traditional health practioners. This Act will make it an offence for traditional healers to practice without being registered as a traditional healer and provides the basis for such registration. This will bring a certificate issued by a registered traditional healer within the ambit of the BCEA and will require that employers accept such a medical certicate if issued by a registered traditional healer. Until such time as this Act becomes operational and traditional healers can be registered, employers will not yet - bearing in mind the Kievits Kroon judgement - have to accept the certificate of a traditional healer as a medical certificate.
Although your employer is not required to accept the certificate of your sangoma, it would be worthwhile to discuss your situation properly with your employer to enable the employer to consider the merits of your situation. If your employer blanketly dismisses the certificate without discussion, it may be worthwhile to obtain further labour advice to assist you with this dispute.