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Tips, advice, and information for South African business owners

19 Dec

Dismissal Due To Religious Beliefs

There is nothing inherently unfair or unlawful about disciplining (or even dismissing) an employee for unauthorised absenteeism. But what if their absence is due to religious beliefs, such as not working on certain days of the week or at certain times of the year? Are you forced to accommodate their faith even if it undermines your operations?

A recent Labour Appeal Court judgment serves as a valuable guide for all employers. In this particular case, an employee was dismissed for being persistently absent during weekend stock takes.

According to the employee, her faith prohibited her from working on Saturdays and she informed her employer about this when she was recruited. Her employer disputed this, claiming that she agreed to work on weekends when she was told that this was a job requirement. According to the employer, they would have never hired the employee in the first place if they had been aware of her limited availability.

While the circumstances surrounding the employee’s recruitment were in dispute, both parties agreed that she never attended the monthly stock takes that were organised on Saturdays. Multiple efforts to convince the employee to participate in the stock takes failed as she adamantly refused to compromise her religious beliefs. Ultimately, she was dismissed.

Unsurprisingly, the employee objected to her dismissal and claimed that it constituted unfair discrimination due to her religious affiliation. The employer, on the other hand, argued that the basis for her dismissal was her incapacity and not her personal beliefs. They also challenged the employee to prove that her faith prohibited her from working on Saturdays.

The matter eventually reached the Labour Appeal Court, which was unimpressed by the employer’s claims. According to the Court, it was disingenuous to argue that the employee was dismissed for her absenteeism instead of her religious beliefs when the latter were directly responsible for the former. Furthermore, it was unnecessary for the employee to prove that she was prohibited from working on Saturdays since the tenets of her faith could be validated using publicly available information.

The employer also argued that the stock takes were an essential part of the employee’s work and, as such, qualified for an exemption from discrimination as provided for in the Labour Relations Act. However, the Labour Appeal Court was not convinced since a full year of stock takes were successfully completed without the employee’s participation, so the employer was never adversely impacted by her absence.

The Labour Appeal Court also noted that the employee offered to work night-shifts and on Sundays to help with the stock takes, but the employer was inflexible and insisted that she conform to their commercial preferences instead of making an effort to accommodate her constitutionally-protected rights.

Therefore, the Labour Appeal Court ruled that the employee’s dismissal was unfair and ordered the employer to pay compensation equivalent to twelve months’ remuneration as well as her legal costs.

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