Culture vs capacity: How employers should handle traditional healer sick notes

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The tribunal heard medical evidence that Judge Lekale’s loss of sight is permanent. Lekale nevertheless believes he will see again, based on advice from traditional healers. He has also indicated that accepting medical discharge could anger his ancestors and prevent his recovery.

Although the tribunal is governed by the constitutional and statutory framework applicable to judges, rather than ordinary employment legislation, it exposes a difficult workplace question: what happens when medical evidence and a sincerely held cultural or spiritual belief point in different directions?

The answer requires employers to distinguish between three separate issues: entitlement to paid sick leave, fair treatment of cultural beliefs, and the management of permanent incapacity.

Paid sick leave has a specific legal test

Section 23 of the Basic Conditions of Employment Act allows an employer to request proof of incapacity where an employee has been absent for more than two consecutive days or on more than two occasions within an eight-week period.

The certificate must be issued by a medical practitioner or another person who is certified to diagnose and treat patients and registered with a professional council established by legislation.

This is where the current legal difficulty arises.

Draft regulations for the registration of traditional health practitioners

8 Jul 2024

The Traditional Health Practitioners Act was intended to establish professional standards and a registration system for traditional health practitioners. However, practitioner registration is still not fully operational and employers cannot reliably verify practitioners through a functioning national register.

As the law presently stands, a certificate from an unregistered traditional healer would therefore generally not, on its own, satisfy section 23 as proof required for statutory paid sick leave.

An employer may decline to treat it as sufficient proof for payment. This does not mean that the document is necessarily fraudulent, meaningless or irrelevant for every other workplace purpose.

Employers may also adopt policies or collective agreements that offer more generous benefits than the BCEA minimum. A business could, for example, recognise traditional healer documentation as supporting evidence when considering unpaid leave or another form of cultural accommodation.

Paid leave and workplace fairness are different questions

This distinction was highlighted in the landmark judgment in Kievits Kroon Country Estate v Mmoledi.

An employee requested unpaid leave to undergo traditional-healer training after being told that she had a calling to become a healer. When the employer refused the leave and instructed her to return to work, she remained absent and was dismissed.

The courts found the dismissal unfair.

Traditional healers: What leave regulations say about training and treatment

24 Jan 2024

The judgment did not establish that every traditional healer’s document qualifies as a medical certificate under the BCEA. Instead, it confirmed that an employer cannot automatically treat a sincerely held cultural belief as dishonest, irrational or unworthy of consideration.

A traditional healer’s certificate may therefore fail to establish an entitlement to statutory paid sick leave but remain highly relevant when determining whether an absence amounts to misconduct, whether unpaid leave should be considered and whether the employer acted fairly.

It may not create an automatic right to payment, but it should not simply be ignored.

Permanent incapacity requires objective evidence

Permanent incapacity raises a different question: can the employee still perform the essential functions of the role, and is there a reasonable prospect of that changing?

In an ordinary employment relationship, an employer must investigate the nature and extent of the incapacity. The employee should be given an opportunity to participate in the process, submit evidence and respond to the employer’s assessment.

The employer must also genuinely consider reasonable accommodation, which could include adjusted duties, altered working arrangements or suitable alternative employment.

An employee’s cultural or spiritual beliefs should form part of that engagement. They do not, however, necessarily determine operational capacity.

Where reliable medical evidence establishes that an employee can no longer perform the essential functions of the position, and no reasonable accommodation is available, the law does not require an employer to postpone a decision indefinitely because a competing spiritual prognosis predicts eventual recovery.

The decisive question is whether the employer followed a fair process, considered the available evidence and properly explored reasonable alternatives.

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Respect does not mean identical legal treatment

Religion, culture and belief are protected against unfair discrimination. Employers should therefore avoid policies that respond to every traditional healer’s certificate with ridicule, hostility or automatic suspicion.

That does not mean a traditional healer’s certificate and one issued by a registered medical practitioner must presently be treated as legally interchangeable.

A sound workplace policy should distinguish between:

• proof required for statutory paid sick leave;
  
• supporting information relevant to unpaid or discretionary leave;
  
• cultural and religious accommodation; and
  
• the medical evidence required during a formal incapacity process.

The continuing delay in operationalising the traditional-health-practitioner registration system leaves employers, employees and practitioners in an uncertain position.

Until that regulatory gap is resolved, employers should separate the legal entitlement to payment from their obligation to act fairly. They should assess incapacity using reliable evidence, engage respectfully with cultural beliefs and document the accommodation options considered.

The law does not currently require employers to treat medical and traditional-healing evidence as interchangeable. It does require them to recognise that a belief may carry profound meaning for an employee, even where it cannot determine the eventual legal or operational outcome.