Solidarteit Wêreld
2019 – Uitgawe 2 Jy en die Reg
Religious convictions and the workplace
Deur Michelle | 25 April 2019

By Mariesa Jansen van Rensburg 

In the case of TDF Network Africa (Pty) Ltd v Faris,* the employee (“Faris”) had been employed by the employer (“TDF”) since 2012. During the recruitment process, Faris informed TDF that she is a Seventh-day Adventist and that she could not work on the Sabbath which falls on a Saturday. She was, in terms of her religion, required to reserve Saturdays for religious matters.

TDF holds a substantial amount of customer stock and as a result had to conduct monthly stock takes on Saturdays. TDF managers were rostered to attend the monthly stock takes, but Faris never attended due to her religious convictions.

A meeting was called by TDF with Faris wherein she confirmed that she could not attend the stock takes on Saturdays as her religion prohibited her from working on Saturdays before sunset. TDF confirmed that they could not make an exception for Faris and proceeded to institute incapacity proceedings against Faris which ultimately lead to her dismissal.

Faris referred the matter to the Labour Court where she contended that TDF discriminated against her based on her religious beliefs. The Labour Court held that her dismissal was automatically unfair and granted Faris 12 months’ compensation.

TDF appealed the outcome on the basis that Faris had not been dismissed because of her religion, but rather because she could not work on Saturdays and that this was an inherent requirement of her job. The Labour Appeal Court held that Faris had in fact been dismissed because of her religion, since there was a direct link between her inability to work on Saturdays and her religion.

The Labour Appeal Court then had to consider the fairness of the discrimination, whether it is connected to a legitimate purpose and whether it unduly impacted Faris’s dignity. On the issue of legitimate purpose, the Labour Appeal Court found that it was possible for TDF to accommodate Faris without imposing undue hardship or operational difficulty.

In considering whether TDF impaired Faris’s dignity, the court held the following:

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. It is a form of intolerant compulsion to yield to an instruction at odds with sincerely held beliefs on pain of losing employment. The employee is forced to make an unenviable choice between conscience and livelihood. In such a situation, the dictates of fairness and our constitutional values oblige the employer to exert considerable effort in seeking reasonable accommodation.

In summary, the Labour Appeal Court held that an employer is obliged to reasonably accommodate an employee’s religious freedom unless it imposes undue hardship on the employer. The balancing test will however not always find in favour an employee, as each case will be considered on its own merit.

* Refers to the case TDF Network Africa (Pty) Ltd v Faris (CA 4/17) [2018] ZALAC 30; [2019] 2 BLLR 127 (LAC); (2019) 40 ILJ 326 (LAC).

 

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