In the following case TDF Network Africa (Pty) Ltd v Faris (2019) 28 LAC 1.11.9, the employee referred to as Faris was employed as part of a graduate management program in 2011 and signed an employment contract in 2012. Faris said that she told the employer at the time of signing her employment contract that she was an Adventist and cannot work on the Sabbath, which was Saturday. She further stated in the case that she told one of the other managers that she could not work on a Saturday as she was an Adventist and this was accepted as they then did not roster her to work on a Saturday.
The employer at the time conducted stock takes at least once a month as they were dealing with a lot of stock from their clients. All the managers had to participate in the stock take, which started on Friday evening right through to Saturday afternoon. According to the employer the stock take could only be done on weekends as they did not work and or have normal work operations over weekends.
The employer said vehemently that they will not make an exception for her religious observances and as such she must work on stock take days. There was no formal procedures followed by the employer in addressing this nor was their proof that she was rostered to work on a Saturday. Faris was dismissed in December 2012 almost a year after she was appointed.
The matter was referred to as an automatic unfair dismissal based on religion. The commissioner stated that the case is an alleged discrimination case based on religion and issued a certificate stating the case remains unresolved and that that case may be referred to the Labour Court.
Section 187 Automatically unfair dismissals in the Labour Relations Act (LRA) states the following:
“A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or if the reason for the dismissal is-
(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”
Section 187 of the LRA imposes an evidential burden upon the employee to produce evidence, which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. The employer must then prove the contrary by producing evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 for constituting an automatically unfair dismissal. There is no hard and fast rule to determine legal causation.
The employer in the stated case maintained that the dominant reason for Faris dismissal is not her religion but that she refused to work on Saturdays.
The Constitutional Court in MEC for Education, KwaZulu-Natal v Pillay6 where it held:
‘A necessary element of freedom and of the dignity of any individual is an entitlement to respect for the unique set of ends that the individual pursues.’ One of those ends is the voluntary religious and cultural practice in which we participate. That we choose voluntarily rather than through a feeling of obligation only enhances the significance of practice to our autonomy, our identity, and our dignity. The protection of voluntary as well as obligatory practices also conforms to the Constitution’s commitment to affirming diversity. It is a commitment that is totally in accord with this nation’s decisive break from its history of intolerance and exclusion. Differentiating between mandatory and voluntary practices does not celebrate or affirm diversity, it simply permits it. That falls short of our constitutional project which not only affirms diversity but promotes and celebrates it.’
“Centrality must be judged with reference only to how important the belief or practice is to the applicant’s religious identity”.
In the current case, the court listed the following factors in establishing whether a matter and or an action amounts to automatically unfair dismissals:
The law looks at a two-step test to ascertain in terms of the LRA Section187 if a dismissal is automatically unfair:
The test was created in a case dealing with a strike.
- The first step to determine is factual causation: The test to be applied is would the dismissal have happened had it not been for the participation or support, or intended participation or support of the protected strike a sine qua non (or prerequisite) for the dismissal? If the answer is yes then the dismissal was not automatically unfair. If the answer is no that does not immediately render the dismissal automatically unfair.
- The second test is legal causation, namely whether such participation or conduct was the main or dominant, or proximate, or most likely cause of the dismissal.
The above-mentioned section of the LRA places an evidential burden on the employee to produce evidence, which is sufficient to raise a credible possibility that an automatically unfair dismissal took place. The employer must then prove that the dismissal was not, in fact, an automatically unfair dismissal.
The court in this instance ruled that you couldn’t take the religion out of the reason for dismissal. Faris was in fact dismissed because she was an Adventist and did not attend the stock take on Saturdays.
An employer faced with a situation where an employee provides religion as the reason for non-compliance with his her duties and responsibilities must consider the following:
- The fairness and inherent requirements of a job,
- The position of the victim/employee of the discrimination in society,
- The purpose sought to be achieved by the discrimination,
- The inherent or inescapable requirement for performance of the job.
- Whether it really will be impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.
The employer has the duty to reasonably accommodate an employee’s religious freedom unless it is impossible to do so without causing itself undue hardship.
Our South African law places fairness and or Constitutional values in high regard and places an encumbrance on an employer to look at reasonable ways to accommodate employees and their religious observances.
ABOUT THE AUTHOR
Rezonia Davids obtained her LLB degree in 2007 at the University of the Western Cape. In 2008 she was enrolled at The University of Cape Town and completed the School for Legal Practice programme. She worked at Legal Aid South Africa as an Articled Clerk and was thereafter admitted as an Attorney in the High Court of South Africa 2011. She started working at SEESA in 2010 and is currently a Labour legal advisor at the Cape Town office.