Whitcher said the arbitrator accepted Njilo’s version, which in broad terms is that he knew, from a colleague, that one could apply for compassionate leave when a family member dies. He had been unaware of the intricacies of the compassionate leave policy, particularly that it did not cover people he regarded in Zulu culture as his “immediate family”, “mother” and “son”.
He said in Zulu culture, a man assumes responsibility for his deceased father’s wives and the children of his deceased brother.
“He was traditional and would have used cultural names to describe the relationships, for example ‘mamncane’ for his father’s wife and so on.”
The employer subsequently applied for a review to the labour court, challenging the arbitrator’s finding. Toyota contended the arbitrator based the award on matters that occurred to her when she was writing the award, but the parties had no opportunity to address it in respect of her view in isiZulu cultural norms and beliefs.
“This claim has no merit. The matter of cultural norms, as described earlier on, was pertinently raised by Mr Njilo during the leading of evidence,” said Whitcher.
The arbitrator found the sanction of dismissal grossly inappropriate given the unique circumstances of the case. At the time of his dismissal, Njilo had worked for the company for 17 years, maintained an “unblemished” disciplinary record and there was no evidence of a genuine breakdown in the trust relationship. The arbitrator didn’t find any dishonest intent on the part of the employee.
On review, Whitcher said it must be established either that the arbitrator has misconceived the nature of the inquiry, or that he or she arrived at an unreasonable result and is required to examine the merits “in the round” only.
She said in any event, the employer’s case that the employee had detailed knowledge of its compassionate leave policy was based on the weak premise that he had applied for compassionate leave many times and a vague suggestion by one witness that he may have seen a copy of the policy on a notice board.
“Given the common knowledge that there are cultural differences when it comes to who is viewed as family, one would have thought the policy on compassionate leave would have been better published and explained,” she said.
“It cannot be said on the totality of the evidence that the arbitrator committed any reviewable irregularity in her assessment of the evidence or her conduct of the proceedings, and the award should stand. The application is dismissed.”
TimesLIVE
Toyota worker who took leave for deaths of ‘mother’ and ‘son’ wins in court
Image: JACKIE CLAUSEN
The Labour court has found that a man who claimed compassionate leave for the deaths of women he described as his “mothers” and a relative he called a “son”, under cultural customs, was not dishonest.
The Zulu man, Lungani Njilo, was dismissed by his employer, Toyota SA Motors, for abusing the company’s compassionate leave policy which it said was intended for immediate family members.
The man has been reinstated after judge Benita Whitcher found the leave policy, comprising 35 pages, did not clearly detail the policy and situated the compassionate leave terms in an obscure section in smaller writing.
Njilo took compassionate leave twice for the death of his “mother” and once for the death of a “son” in 2013, 2014 and 2015.
“Explained in Western terms and that of the policy, the ‘son’ was Mr Njilo’s late brother’s son and the ‘mother/s’ had been his late father’s second wife and his aunt,” Whitcher said in the ruling.
He was dismissed on a charge of misconduct on the grounds that he dishonestly provided false information about the relationship with the deceased on three occasions, which resulted in him receiving compassionate leave payments for which, according to the company, he did not qualify.
The policy defined immediate family members as “husband, wife, grandparents, father, mother, father-in-law, mother-in-law, sister, brother, brother-in-law, sister-in-law, child and grandchildren”.
According to the company’s policy, the employee may be required to provide an affidavit indicating the relationship between the employee and the deceased person.
Njilo’s dismissal went to arbitration, where he won his case.
Whitcher said the arbitrator accepted Njilo’s version, which in broad terms is that he knew, from a colleague, that one could apply for compassionate leave when a family member dies. He had been unaware of the intricacies of the compassionate leave policy, particularly that it did not cover people he regarded in Zulu culture as his “immediate family”, “mother” and “son”.
He said in Zulu culture, a man assumes responsibility for his deceased father’s wives and the children of his deceased brother.
“He was traditional and would have used cultural names to describe the relationships, for example ‘mamncane’ for his father’s wife and so on.”
The employer subsequently applied for a review to the labour court, challenging the arbitrator’s finding. Toyota contended the arbitrator based the award on matters that occurred to her when she was writing the award, but the parties had no opportunity to address it in respect of her view in isiZulu cultural norms and beliefs.
“This claim has no merit. The matter of cultural norms, as described earlier on, was pertinently raised by Mr Njilo during the leading of evidence,” said Whitcher.
The arbitrator found the sanction of dismissal grossly inappropriate given the unique circumstances of the case. At the time of his dismissal, Njilo had worked for the company for 17 years, maintained an “unblemished” disciplinary record and there was no evidence of a genuine breakdown in the trust relationship. The arbitrator didn’t find any dishonest intent on the part of the employee.
On review, Whitcher said it must be established either that the arbitrator has misconceived the nature of the inquiry, or that he or she arrived at an unreasonable result and is required to examine the merits “in the round” only.
She said in any event, the employer’s case that the employee had detailed knowledge of its compassionate leave policy was based on the weak premise that he had applied for compassionate leave many times and a vague suggestion by one witness that he may have seen a copy of the policy on a notice board.
“Given the common knowledge that there are cultural differences when it comes to who is viewed as family, one would have thought the policy on compassionate leave would have been better published and explained,” she said.
“It cannot be said on the totality of the evidence that the arbitrator committed any reviewable irregularity in her assessment of the evidence or her conduct of the proceedings, and the award should stand. The application is dismissed.”
TimesLIVE
Hospital guards 'attacked by guards from another company' - 5 arrested
Eskom faces growing financial strain, S&P Global says
Would you like to comment on this article?
Register (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.
Trending
Related articles
Latest Videos