FAMILY RESPONSIBILITY LEAVE IN THE SOUTH AFRICAN CONTEXT

Author: S.P Masondo of Legal-Waze (Pty) Ltd.

Authority: Basic Conditions of Employment Act.

INTRODUCTION

Family responsibility leave is a right enshrined in section 27 of the Basic Conditions of Employment Act, which sets out the minimum conditions of employment. In terms of the Act, family responsibility leave only caters for specific people on the occurrence of specific events. However, given the cultural diversity of South Africa there has been some questions pertaining to the wording and application of this section. With this paper i will seek to share an interesting decision by the CCMA and the labour Court, and my view on what these decision may imply.

Section 27 (2) of the Act reads, “An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days’ paid leave, which the employee is entitled to take—(a) when the employee’s child is born;(b) when the employee’s child is sick; or (c) in the event of the death of—(i) the employee’s spouse or life partner; or (ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.”. In the African context, the word “mother” is not limited to the one person who gave birth to you because we find African males with more than one wife, and all the children refer to all wives as “mother”. The opposite is also true in the event of a female with more than one husband when it comes to the use of the word “father”. We also have word such as “mamncane” (the younger female sibling on one’s maternal or paternal side), and “mamkhulu” (the older female sibling on one’s maternal or paternal side), these words refer to aunts. According to the African custom, aunts are also deemed to be mothers to their siblings’ children. The opposite is also true regarding the male gender. We find children that have been inherited by customary marriage but were never legally adopted, or taken in by either parent’s sibling upon death of both parents as per the African norm but never legally adopted etc. The quanundrum is, are all these aforementioned persons covered in terms of the Act and qualify under family responsibility leave?

In Toyota South Africa Motors (PTY) Ltd v NUMSA obo Njilo and Others (D 692/19) [2022] ZALCD 12; (2022) 43 ILJ 2393 (LC) (14 July 2022), a certain Mr Lungani Njilo was dismissed for dishonesty in that in May 2013 and July 2014 he had taken family responsibility leave to attend his mothers’ funerals as they were deceased. He also took another family responsibility leave to attend his son’s funeral in February 2015. It was later found that when he said “mother”, he was referring to his father’s second wife in May 2023 and his aunt in July 2014. It was also established that when he said “son”, he was referring to his late brother’s son, who he was taking care of. The dismissal was later challenged to be unfair on grounds, inter alia, that there was no dishonesty on the side of Mr Njilo because, in the African culture, the word “mother” also includes one’s father’s second wife even though she is not the biological mother, and that “son” includes one’s deceased sibling’s children if one took over and acted as a father towards them. The CCMA agreed with this position and it was later confirmed by the labour court upon review.

CONCLUSION

It is common cause that when the legislature was drafting the Act, it only did so in the Western context. This is evident even in sections such as section 22 which deals with sick leave and only recognises a Western doctor’s note as proof of incapacity but fails to recognise the fact that majority of African persons use traditional healers, and regulate that event. Therefore, from the above positions taken by both the CCMA and the labour court, one can be justified to draw the inference that when dealing with the meaning of the wording of section 27 and extent of application, one also has to take into cognisance the cultural believes of the person in question. It is my opinion that it is a grave injustice to take a blanket approach in the interpretation of this section in a country that is as culturally diverse as South Africa.