The Labour Appeal Court (LAC) has reaffirmed that employers must be tolerant of employee religious beliefs.
In TDF Network Africa (Pty) Ltd v Deidre Beverley Faris, it ruled that the employee was discriminated against and unfairly dismissed for practising her religion. Faris, a Seventh Day Adventist, refused to attend monthly Saturday stock takes as her religion prohibited working over the Sabbath. The employer dismissed her for ‘incapacity’.
Faris approached the Labour Court with an automatically unfair dismissal dispute owing to her religious beliefs. It found the dismissal automatically unfair because she was discriminated against for religious compliance.
Monthly weekend warehouse stock-takes were a requirement of the logistics and transport service provider, Faris, however, was unable to work during her Sabbath – from sundown on Friday to sundown on Saturday.
In her interview, she had informed the employer of her religious beliefs that precluded her from working at this time.
The employment contract contained a provision requiring her to work overtime – provided it did not exceed the statutory limitations. Whilst the employer contended that it was an operational requirement for Faris to participate in Saturday stock takes, she had not attended one for 12 months prior to her dismissal, despite being rostered to do so. She faced no disciplinary action during this period.
Faris made various suggestions to find a mutually agreeable solution, including working after sunset on Saturdays, on Sundays or after hours. There was no evidence that the employer engaged her meaningfully about possible alternatives.
The LAC had to decide whether the discrimination was fair, rationally connected to a legitimate purpose and whether it unduly impugned her dignity. It concluded that she would not have been dismissed had it not been for her religious beliefs and the employer discriminated against her for complying with these beliefs.
The employer contended that it was an inherent requirement for someone in a managerial position such as hers to participate in the stock taking. The LAC emphasised that a legitimate commercial rationale is not sufficient to demonstrate fair discrimination.
Faris was awarded 12 months compensation. This judgment emphasises the need for religious tolerance in the workplace.
What this means for employers
- Employers must demonstrate that it is impossible to accommodate an individual employee without imposing undue hardship or insurmountable operational difficulty.
- An employer may not insist on an employee obeying a workplace rule where a refusal to obey that rule would have little or no consequence to the business.
- Employers must think carefully before they institute incapacity proceedings against employees who are unable to adhere to a specific workplace rule or practice.
- Employers must draw a distinction between employees who arbitrarily disobey a lawful instruction and those who have a legitimate reason based on religious belief or other constitutionally protected rights.
- On incapacity related matters, employers are duty bound to try to accommodate employees that are unable to tender services as normal due to, for instance, legitimate religious beliefs.
This article was written by Lovanya Moodley, Associate, Norton Rose Fulbright South Africa Inc