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The right to religion in the workplace – a careful balance between the right and the employer’s business requirements

By Ndumiso Zwane, Director and Bheki Nhlapho, Associate, Employment, Cliffe Dekker Hofmeyr

 

South African workplaces are not immune to the winds of change blowing towards the direction of the constitutional project. The essence of this project is to ensure that wherever it is in the country and no matter the circumstance, the rights and freedoms contained in the Bill of Rights are respected or where they are limited, such limitation is justifiable. The TDF Network Africa (Pty) Ltd v Deidre Beverly Faris case is an example of balancing business interests and the rights and freedoms that employees enjoy under the South African Constitution.

 

The facts of this case are that during the recruitment process, Ms Faris informed TDF Network Africa (Pty) Ltd’s (TDF) representatives that she was a Seventh Day Adventist. In terms of this religion, a Saturday is a holy Sabbath and Ms Faris was required to observe it by not working on Saturdays but dedicate herself to spiritual and religious matters.

 

TDF is involved in logistics and warehousing services. Due to the substantial stock in the warehouse, stock taking had to be conducted over weekends on a monthly basis. A roster was created and Ms Faris was also required to attend to do stock taking on weekends but she never attended as she had to observe the holy Sabbath. During a meeting regarding her failure to attend to work on Saturdays, Ms Faris’ explanation was that this was due to religious reasons and requested a special accommodation to be made. Further, Ms Faris made suggestions including working on Sundays. TDF refused such accommodation on the basis that the stock taking requirements cannot be changed for one person and that there would be a floodgate of similar requests.

 

TDF initiated incapacity proceedings and dismissed Ms Faris due to her unavailability to work on Saturdays. Ms Faris referred an automatically unfair dismissal dispute to the CCMA and upon receiving the certificate of non-resolution, she referred the matter to the Labour Court. The Labour Court found that the dismissal was automatically unfair and ordered 12 months compensation.

 

On appeal, TDF argued that the dominant reasons for Ms Faris’ dismissal was not her religion but her refusal to work on Saturdays. Further, that she failed to prove that her religion forbid work on Saturday. TDF’s conclusion was that Ms Faris’ religion played no role in her dismissal.

 

The Labour Appeal Court applied the causation test in deciding the matter and held that Ms Faris’ religion was the dominant and proximate reason for her dismissal as had she not been an Adventist, she would have been able to work on Saturdays. The Labour Appeal Court also enquired into whether the discrimination unduly impaired Ms Faris’ dignity. On this issue, the Labour Appeal Court found that TDF had a rigid policy which it did not want to depart by making an exception. Further, it held that TDF would not have suffered undue hardship by accommodating Ms Faris. On this point, a distinction was drawn between this case and the FAWU and others v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC) case.

 

In dealing with the need to balance the right to religion against TDF’s business requirements, the Court held that – “Without question, an employment practice that penalises an employee for practising her religion is a palpable invasion of her dignity in that it supposes that her religion is not worthy of protection or respect. … The employee is forced to make an unenviable choice between conscience and livelihood.” The Labour Appeal Court concluded that in such situations, employers must take steps to reasonably accommodate employees.

 

This case demonstrates that the right to religion can be in conflict with employers’ demands and that a level of tolerance is expected from employers in a form of taking steps towards the protection of constitutional rights in the workplace. However, it is not always the case that the right to religion will prevail over the employer’s commercial rationale. Each case must be treated and assessed on its own merit.

 

For more information please contact Ndumiso Zwane at  or Bheki Nhlapho at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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