South Africa

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Durban employee who took leave in line with Zulu tradition didn’t cheat, says court

Durban employee who took leave in line with Zulu tradition didn’t cheat, says court
Durban Labour Court Judge Benita Whitcher ruled that Toyota had not explained its compassionate leave policy adequately to employees. (Illustration: Lisa Nel / GroundUp)

The Labour Court has found that the man had not intended to be dishonest when he went to his ‘mother’s’ funeral twice.

A long-serving Zulu employee at Durban’s Toyota plant, who was fired on the grounds that he abused compassionate leave, has been reinstated after a judge found that the company’s policy and rules should have been better explained.

Durban Labour Court Judge Benita Whitcher said Toyota’s leave policy comprised about 35 pages “with compassionate leave situated in an obscure section in smaller writing”. She said none of the company’s witnesses had stated that the policy had been properly explained to employees.

Previously, commissioner Nonhlanhla Dubuzanethe at the Commission for Conciliation, Mediation and Arbitration (CCMA) had found the dismissal of Lungani Njilo to be unfair and ordered that he be reinstated.

Toyota South Africa Motors took the matter to the Labour Court on review.

Njilo was dismissed after being found guilty of dishonesty for “providing false information” on three occasions about his relationship with certain people who had died when he applied for and was granted compassionate leave. His 2013 and 2014 applications reflected the deceased as being his “mother”, and a 2015 application reflected the deceased as his “son”.

Company policy provided for compassionate leave in respect of the death of immediate family members, defined as husband, wife, grandparents, father, mother, siblings, in-laws, children and grandchildren.

Judge Whitcher said that if explained in Western terms, Njilo’s “mothers” were his late father’s second wife and his aunt. His “son” was his late brother’s son.

Unblemished record

Njilo said he had been unaware of the intricacies of the policy, and particularly that it did not cover people he regarded in Zulu culture as his immediate family. He said that in Zulu culture, a man assumes responsibility for his deceased father’s wives and the children of his deceased brother.

“In any event, he had not hidden the relationship between him and the deceased when he approached his Zulu-speaking group leaders to apply for leave. He was traditional and would have used cultural names to describe the relationships,” Judge Whitcher said.

The commissioner had ruled that Njilo had not intended to be dishonest and that his dismissal was grossly inappropriate since he had 17 years’ service and an unblemished disciplinary record.

Toyota, in its bid to overturn the finding on review, argued that the issue of isiZulu cultural norms and beliefs had not been properly aired at the arbitration.

But the judge said this was not so because it had been pertinently raised by Njilo when he gave evidence. She said the company’s case – that Njilo was aware of the policy – was based on the weak premise that he had applied for compassionate leave numerous times and the “vague suggestion” by one witness that he might have seen a copy of it on the notice board.

Read in Daily Maverick: “Downer for cannabis user as high court blunts bid for work reinstatement

Judge Whitcher said the decision of the commissioner must stand unless it was demonstrated that no reasonable arbitrator could have reached the conclusion she had in the matter.

“In my view, another arbitrator could easily have found that the sanction of dismissal was unfair… given his long service and disciplinary record and the fact that evidence did not demonstrate a contrived and indeed devious manipulation by him,” said the judge.

She said there was also no evidence that the trust relationship between Njilo and the company had been destroyed. She dismissed the application. DM

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