According to Section 27 of the BCEA, family responsibility leave is available to employees who have been with the same employer for more than four months and work more than four days per week. This leave can be taken when an employee's child is born, when the employee's child is sick, or in the event of the death of the employee's spouse, life partner, parent, adoptive parent, grandparent, adopted child, grandchild, or sibling. Employees are allowed to take half-day family responsibility leave if necessary. Employers may request proof of the event requiring the leave, such as a medical or death certificate. Family responsibility leave cannot be claimed for any reason other than those mentioned above.
In Toyota South Africa Motors (Pty) Ltd and NUMSA obo Njilo, Lungani 43 ILJ 2393 (LC), The Court had to determine whether behaviour based on cultural norms, beliefs, and practices could be considered misconduct. The employee was accused of dishonesty for providing false information about his relationship with a deceased person in May 2013, July 2014, and February 2015, which led to him receiving compassionate leave payments he was not entitled to. He was dismissed for dishonesty after he had taken compassionate family leave in an instance where the Respondent did not believe he had done so in respect of the death of "immediate family" members in line with the company policy. The evidence showed that he had taken compassionate leave when a "son" and his "mother/s" had passed away. It turned out that it was his late brother's son, and the "mother/s" were his late father's second wife and aunt. The Applicant explained to the Court that in Zulu culture, a man takes responsibility for his deceased father's wives and the children of his deceased brother. He stated that he did not hide his relationship with the deceased when he applied for leave from his Zulu-speaking group leaders. He also mentioned that he would have used cultural names, such as "mamncane" for his father's wife, to describe the relationships. The Court noted that the compassionate leave policy, situated in an obscure section with smaller writing within a 35-page document, should have been better published and explained, considering the cultural differences in defining family members.
The Court, in its ruling, stated in paragraph 19 that "Another Commissioner could easily have found that the dismissal sanction was unfair, considering the Applicant's position (he was not a senior employee), his 17 years of service, his unblemished disciplinary record, and the lack of evidence demonstrating manipulative behaviour by the Applicant to obtain compassionate leave. There was also no evidence to show that the Applicants' conduct had objectively destroyed the trust relationship."
The BCEA serves as a basic guideline, and employers must develop a policy suited to their organisation. Taking a more humanistic approach to family responsibilities is preferable, especially considering the variety of cultural differences within South Africa.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.