An employer who dismisses an employee for refusing to work on normal work mandated days due to religious beliefs must proceed with caution.
According to Jacques van Wyk, director and labour law specialist at Werksmans Attorneys, this was confirmed by a recent Labour Appeal Court case which dealt with whether such a dismissal is automatically unfair.
In this case, the employee was a member of the Seventh Day Adventist faith (Adventist), he said.
“In terms of her religious beliefs, Saturdays are the holy Sabbath.
“During such period she was prohibited from performing any work in accordance with the tenets of her religious beliefs.
“Her employer allocated Saturdays for stock taking as normal business operations and did not allow for it to be done during the week or on Sundays. All managers were required to participate in stock taking and it formed part of their training.”
Due to the commitment to her faith, the employee was unable and unwilling to attend stock takes, van Wyk said.
When her employer confronted her about her absence, she acknowledged the importance of stock taking but explained that she was unwilling to compromise on her religious convictions.
Instead, she proposed alternative working arrangements to attend to the stock takes but her employer did not meaningfully engage with her in this regard.
Her employer subsequently dismissed her for incapacity.
After being heard by the CCMA and Labour Court, the matter ultimately headed to the Labour Appeal Court (LAC).
The LAC took judicial notice of the tenets of the Adventist religion that no labour may be done on the Sabbath aside from emergency humanitarian work, van Wyk said.
“The LAC then found that the employee had discharged the burden of showing that the dominant reason for her dismissal was her religion.
“Essentially, had it not been for her religion, she would have been available to work on Saturdays and would not have been dismissed. The employee could offer no compelling evidence rebutting this finding. The employee, therefore, succeeded in the first step of her claim by showing that the reason for her dismissal was discriminatory.”
The LAC then had to consider whether the discrimination was fair, van Wyk said.
“The employer has a duty to attempt to accommodate the employee, and despite the employee providing several suggestions as to how this could be done, the employer did not offer any meaningful engagement,” he said.
“For these reasons, and having regard to the particular facts of the matter, the LAC found that the dismissal was automatically unfair and awarded Faris the equivalent of twelve months’ compensation for her dismissal.”
This case highlights that employers should apply caution when electing to dismiss an employee where such dismissal may give rise to a claim of unfair discrimination, said van Wyk.
Where an employee proves that they were dismissed on “arbitrary” grounds that are found to be discriminatory, it falls on the employer to prove that those grounds, while discriminatory, were fair.