Employer’s leave policy not providing for paid leave for “ancestral calling”, does this leave policy unfairly discriminate against the employees’ on the basis of religious/cultural beliefs?

In modern society, employees face a dilemma regarding the extent to which they may exercise their rights to cultural and religious beliefs, however, this right is not absolute as it has to be weighed against the inherent requirements of the job as it may also result in an undue hardship on the employer.

Consider the matter of Leshaba / Department of Correctional Services [2022] 5 BALR 499 (CCMA) GAEK866220, the employee, a correctional services official, applied for three months paid special leave to respond to an “ancestral calling”, he was told that the employer’s leave policy does not have a provision for traditional healer’s training for a period of three months and therefore his leave application was rejected.

However, the employee was advised to utilise his annual leave or apply for unpaid leave. The employee was not happy with this suggestion from the employer, he resigned and proceeded to undergo his training as a traditional healer. The employee later lodged a claim at the CCMA that this amounted to discrimination on the grounds of religious beliefs due to the policy not making provision for such leave and asked for an order directing the employer to pay him three months’ salary.

The CCMA commissioner held that although such leave may practically fit into the category of “special leave”, the policy was not discriminatory and the rejection of the employee’s request did not amount to differential treatment. The employer’s special leave policy, which conformed with that of the public service generally, was fair and did not discriminate against the employee.

The commissioner held further that It is unreasonable to expect any employer to pay an employee three months for special leave and that is why special leave is mostly granted on an unpaid basis, as it falls outside the categories of leave mandated in the Basic Conditions of Employment Act. The matter was dismissed.

As long as employers have followed the guidelines and or legal requirements as set out in the BCEA, LRA and EEA in terms of the development of their leave policy, there will be little risk, if any, when employees decide to challenge the fairness of the leave policy. As in the above matter, a leave policy not providing for paid leave for an “ancestral calling” is not discriminatory. It is unreasonable to expect any employer to pay an employee three months for special leave, not making provision for such paid leave in your policy is thus reasonable and justifiable.