Employment law update – Discrimination on religious grounds

March 1st, 2019
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Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at DLA Piper in Johannesburg.

In TDF Network Africa (Pty) Ltd v Faris [2018] JOL 40638 (LAC), the employee was dismissed for refusing to work on Saturdays as she was a member of the Seventh Day Adventist church and, as such, was required to observe the Sabbath between sundown on Friday and sundown on Saturday. During this period she was not permitted to work and had to devote her time to spiritual and religious activities.

The Labour Court (LC) found that the dismissal was automatically unfair. The employer appealed to the Labour Appeal Court (LAC), which had to consider whether her dismissal was fair on the basis that it was an inherent requirement of the job for the employee to work on a Saturday.

The employer is a logistics company that offers warehousing services. According to the employer, it is an important operational requirement for the employer to carry out stocktaking of the warehouse once a month. This stocktaking is carried out under the supervision of its managers. The employer accordingly argued that it was an inherent requirement of the employee’s job as a manager to work on a Saturday. The employee alleged that she had mentioned during her job interview that she could not perform work on a Saturday, but the employer denied this. According to the employer the employee indicated in the interview that she would have been happy to work over weekends. The employer alleged that had it known that the employee would not work on a Saturday it would not have employed her. A few months after the employee commenced employment the employer took issue with the fact that she had not attended any of the stocktakes. A number of meetings were held with the employee during which it was explained to her that all managers had to be rostered in to conduct a stocktake and no exception could be made for her. She said that she was precluded from complying because of religious reasons. Incapacity proceedings were then initiated and she was dismissed for incapacity.

Section 187 of the Labour Relations Act 66 of 1995 requires the employee to provide evidence that an automatically unfair dismissal took place. The employer must then show that it was not an automatically unfair dismissal. The employer alleged that the reason for her dismissal was not her religion but rather her refusal to work on a Saturday. The employer argued that the employee could have obtained an exception from her church to permit work on a Saturday. The employee admitted that exceptions are made for doctors, nurses and persons in essential services but she said that stocktaking did not fall into this category. Furthermore, she said that she elected as a matter of conscience not to seek a special dispensation from the church.

The LAC had to consider the underlying reason for why the employee refused to work on a Saturday and it held that her religion was the dominant and proximate reason for her dismissal because but for her religion she would have worked on a Saturday and would not have been dismissed. The LAC pointed out that when determining the fairness of an inherent requirement of a job the following should be considered –

  • the position of the victim of the discrimination in society;
  • the purpose sought to be achieved by the discrimination;
  • the extent to which rights or interests of the victim have been affected;
  • whether discrimination has impaired human dignity; and
  • whether there is a less restrictive means to achieve the purpose.

The LAC emphasised that there must be a proportionality inquiry to determine whether there is an inherent requirement of the job and this requirement must be rationally connected to the job. Furthermore, the requirement should have been adopted in a genuine and good faith belief that it was necessary for the fulfilment of a legitimate work-related purpose and it must be reasonably necessary to achieve that purpose. Furthermore, the employer must show that it took reasonable steps to try accommodate the employee but it is not possible to accommodate the individual without imposing undue hardship on the business. In this regard, it should not insist on an employee complying with the requirement if non-compliance would have little impact on the business.

The employer was of the view that requiring the employee to attend the stocktake on a Saturday was an important operational requirement and it was essential for the employee to be involved as it would give her an opportunity to exercise supervision and control over the employees and provide managerial training. It was also of the view that this was a limited infringement on her right to religion as it only affected her on 12 days of the year and she was free to practise her religion on every other day. The employer further argued that there was a danger that if it accommodated the employee it would open the floodgates for other employees to seek special treatment.

The LAC found that the employer could have accommodated the employee and it would not have caused undue hardship. This was particularly because the employee had not performed the stock take for 12 months and the employer had not suffered hardship. As regards the floodgate argument, the LAC found that this was not a concern as there are only two religions that preclude working on a Saturday.

The LAC accordingly found that the dismissal was automatically unfair and upheld the LC’s order for 12 month’s compensation. The LAC, however, did not agree with the LC insofar as it ordered a further R 60 000 to be paid in respect of unfair discrimination. In this regard, the LAC found that liability under s 60 of the Employment Equity Act 55 of 1998 had not been proven and this amounted to double compensation which was unduly punitive.

Is a s 197(6) agreement a collective agreement which is capable of extension?

In National Union of Mineworkers and Others v Anglo Gold Ashanti Limited and Another [2018] JOL 40515 (LC), AngloGold commenced a consultation process in accordance with s 189A of the Labour Relations Act 66 of 1995 (the Act) in accordance with the collective agreements between AngloGold and four trade unions, including the National Union of Mineworkers (NUM). During the consultation process it was discussed that certain assets including the hospital would be sold in order to try preserve jobs. The hospital would be sold as a going concern. However, the purchaser did not wish to take on the employment of all the employees in the hospital and a s 197(6) agreement was accordingly concluded to ensure that only some employees would transfer to the purchaser, failing which the purchaser would not go ahead with the sale. A meeting was held with the unions to sign the s 197(6) agreement in order to give effect to the sale. NUM said that it agreed in principle but needed to get a mandate from its members. NUM’s members objected to this and NUM accordingly advised that it would not sign the agreement but it would participate in the implementation of the agreement. The NUM members disrupted the briefing session, which was to determine the employees to be transferred and those to remain and be retrenched. It threatened to boycott the implementation of the s 197(6) agreement and then embarked in an unprotected strike. AngloGold was granted interim relief by the court and NUM and its members then sought an order interdicting the dismissals.

NUM argued that the s 197(6) agreement was not a collective agreement in terms of s 123 of the Act and could not be extended to bind its members in terms of s 23(1)(d). NUM contended that the hospital was a workplace and NUM was the majority union of that workforce. AngloGold argued that the hospital is not a workplace and referred to the Constitutional Court decision in Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others [2017] 7 BLLR 641 (CC) in which it was held that the definition of a workplace is more focused on employees as a collective and that a location is immaterial.

Nkutha-Nkontwana J found that the s 197(6) agreement to opt out of s 197(2) was a collective agreement as it was entered into as part of the retrenchment process and was informed by the mutual interest to save some of the jobs in the hospital. In this regard, he referred to National Union of Metalworkers of South Africa (NUMSA) obo Members v South African Airways SOC Ltd and Another [2017] 9 BLLR 867 (LAC) in which it was held that an agreement, which meets or satisfies the requirements set out in s 213 constitutes a collective agreement and as such a retrenchment agreement between an employer and trade union settling a retrenchment dispute is, therefore, a collective agreement.

This article was first published in De Rebus in 2019 (March) DR 30.