• A Zulu employee at Toyota’s Durban plant has been reinstated after he was fired on the grounds he had abused compassionate leave.
• The Labour Court upheld a ruling by the CCMA that the company should have better explained its leave policy because of cultural differences among its employees.
• The employee had not realised the policy did not cover people he regarded as his immediate family.

A long-serving Zulu employee at Toyota’s Durban plant, who was fired on the grounds he abused compassionate leave, has been reinstated after a judge found the company’s policy and rules should have been better explained, GroundUp reported.

Durban Labour Court Judge Benita Whitcher said Toyota’s leave policy comprised some 35 pages “with compassionate leave situated in an obscure section in smaller writing”.

She added none of the company’s witnesses stated the policy had been properly explained to employees.

Previously, commissioner Nonhlanhla Dubuzanethe of the Commission for Conciliation, Mediation and Arbitration (CCMA) had found the dismissal of Lungani Njilo to be unfair and ordered he be reinstated.

Toyota South Africa Motors took the matter to the Labour Court on review.

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Njilo was dismissed after being found guilty of dishonesty for “providing false information” on three occasions about his relationship with certain people who had died when he applied for and was granted compassionate leave.

His 2013 and 2014 applications reflected the deceased as being his mother, and a 2015 application reflected the deceased was his son.

Company policy provided for compassionate leave in respect of the death of immediate family members, defined as husband, wife, grandparents, father, mother, siblings, in-laws, children and grandchildren.

Whitcher said if explained in Western terms, Njilo’s mothers were his late father’s second wife and his aunt. His son was his late brother’s son.

‘Cultural’ relationships

Njilo added he had been unaware of the intricacies of the policy, and, in particular, that it did not cover people he regarded in Zulu culture as his immediate family.

He said in Zulu culture, a man assumed responsibility for his deceased father’s wives and the children of his deceased brother.

“In any event, he had not hidden the relationship between him and the deceased when he approached his Zulu speaking group leaders to apply for leave. He was traditional and would have used cultural names to describe the relationships,” Whitcher added.

The commissioner ruled Njilo had not intended to be dishonest and his dismissal was grossly inappropriate since he had 17 years’ service and an unblemished disciplinary record.

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Toyota, in its bid to overturn the finding on review, argued the issue of isiZulu cultural norms and beliefs had not been properly aired at the arbitration.

But Whitcher said this was not so because it had been pertinently raised by Njilo when he gave evidence.

She added the company’s case – that Njilo was aware of the policy – was based on the weak premise he had applied for compassionate leave numerous times and the “vague suggestion” by one witness he might have seen a copy of it on the notice board.

Whitcher said the commissioner’s decision must stand unless it was demonstrated that no reasonable arbitrator could have reached the conclusion she had in the matter.

“In my view, another arbitrator could easily have found that the sanction of dismissal was unfair … given his long service and disciplinary record and that fact that evidence did not demonstrate a contrived and indeed devious manipulation by him.”

She added there was also no evidence the trust relationship between Njilo and the company had been destroyed and dismissed the application.