Do employees have the right to practice their religion?

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In a matter that was heard before the Labour Court, the employer dismissed the employee for incapacity after the employee had refused to work on Saturdays on account of her being a member of the Seventh Day Adventist Church.

The employer, who conducts business as a logistics and transport service provider, required stock-taking to be done once a month on a Saturday. The employee was employed as part of the employer’s graduate management training programme. The employer argued that it was an inherent job requirement of the employee to be able to work on Saturdays.

In considering whether something qualifies as a legitimate inherent requirement of a job, the Court stated that “[t]he test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry” and that “[i]n general, the requirement must be rationally connected to the performance of the job.”

The Court furthermore stated that “[t]his means that the requirement should have been adopted in a genuine and good faith belief”, that it is necessary for the “fulfilment of a legitimate work-related purpose and… [that the requirement is] reasonably necessary… [for] the accomplishment of that purpose.” The Court went further and stated that it is “the employer [who] bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.”

In applying this test the Court stated that it was not persuaded that the employer could not fulfil the object of stock-taking without accommodating the employee’s religious beliefs. The Court furthermore found that “there [was] no evidence that the employer suffered any hardship at all by [the employee] being absent” during stock taking on Saturdays. The Court based this conclusion on the fact that the employee in question did not attend the Saturday stocktaking sessions for a period of twelve months and that there was no evidence before the Court that the employee’s absence in any way impacted the employer’s ability to successfully conduct the stocktaking exercise. The Court accordingly found that the dismissal was automatically unfair since the employer could not prove that the discrimination was fair in terms of the Labour Relations Act.

The Labour Appeal Court upheld the order of the Labour Court and awarded the employee the equivalent of twelve months’ compensation for the automatically unfair dismissal.

It is important for employers to be aware that dismissing an employee for incapacity due to religious reasons will not often be deemed fair in terms of the Labour Relations Act and the Constitution, even if such dismissal is motivated by a legitimate commercial rationale. It would be potentially fair if the employer can show that it would incur undue hardship in accommodating such an employee.

For advice on this topic or assistance in any matters relating to labour matters, please contact our labour law specialist Clint van Aswegen at c.vanaswegen@bissets.com.

 

Clint van Aswegen | Partner

E: c.vanaswegen@bissets.com

Areas of Expertise: Commercial Litigation, Civil Litigation, Property Litigation, Employment Law, Insolvency Law, Litigation / Dispute Resolution

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)