Frequently asked questions and answers
As a value-added service to our clients, we are including you in our FAQ’s on employment law and workplace relations matters.
X was requested by her employer, Down Town (Pty) Ltd, to participate in monthly stock taking exercises that took place on Saturdays. X refused to participate. Her reason for doing so was that she was a Seventh Day Adventist (Adventist), a religion in which Saturday is regarded as Sabbath. As a result of this, X was dismissed. Was X’s dismissal fair?
This matter was dealt with in TFD Network Africa (Pty) Ltd v Faris (Unreported CA 4/17 5/11/2018). What was common cause was that TFD, a logistic company whose warehouse carried significant quantities of its customers’ stock, found it obligatory to conduct monthly stock taking on a Saturday. In fact, this was considered as a business requirement and was undertaken by managers of TFD. Managers were rostered for this duty. Nonetheless, Faris, who was also a manager, declined to perform these activities as she was not prepared to compromise her religious belief. Subsequently, Faris was dismissed for her refusal to work on Saturdays. Her dismissal was characterised as incapacity.
The Labour Court found that the dismissal had been automatically unfair as well as substantively and procedurally unfair. TFD was granted leave to appeal. The LAC found that the dismissal would not have occurred if Faris had not been an Adventist. Had she not been an Adventist she would have willingly worked on a Saturday. The employer has a duty to reasonably accommodate an employee’s religious freedom unless it is impossible to do so without causing itself undue hardship. It is not enough that it may have a legitimate commercial rationale.
Therefore, it follows that X’s dismissal was automatically unfair.
Content supplied by Ali Ncume (LLB LLM CERT.LABOUR LAW PRACTICE) a Director AT Mason Consulting.