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A recent Labour Appeal Court ruling has sent a stern warning to South African employers to be more tolerant of their employees’ religious beliefs.

This comes after the court ruled in favour of Deidre Beverley Faris, who took her employer, TDF Network Africa, to court over what she deemed was an unfair dismissal over her unavailability to work over the Sabbath.

The court agreed that the Seventh Day Adventist, who observes the day for religious reasons and abstains from work from Friday evenings to Saturday evenings, was dismissed unfairly and awarded her 12 month’s compensation.

Faris told the Labour Appeal Court the company was aware that she observed the Sabbath and that this prohibited her from working during this time.

But TDF Network Africa went on to fire her from her managerial position at the company, arguing that it was an inherent requirement for someone her position to participate in the company’s stocktaking.

This duty was a requirement of the logistics and transport service provider and the task was conducted once a month, on a Saturday.

As Faris was unable to attend stocktaking due to her religious obligations, the company then dismissed her for “incapacity”.

When Faris approached the court, she contended that during her interview with TDF Network Africa she informed the company of her religious beliefs, which precluded her from working at the time in question.

The employment contract contained a provision requiring her to work overtime, provided it did not exceed the statutory limits.

Although the employer maintained that it was an operational requirement for Faris to participate in Saturday stocktaking, she had not attended one for 12 months prior to her dismissal, despite being rostered to do so.

She had also faced no disciplinary action during this period.

In a bid to make up for her unavailability on the Sabbath, Faris told the court she had made various suggestions to find a mutually agreeable solution.

This included working after sunset on Saturdays, Sundays or after hours, but there was no evidence that her employer had engaged her meaningfully about possible alternatives.

Following these arguments by both employee and employer, the court had to decide whether Faris’ dismissal was fair, rationally connected to a legitimate purpose and whether it unduly impugned her dignity.

The court found that the employee would not have been dismissed had it not been for her religious beliefs, and that the employer had discriminated against her for complying with these beliefs.

The court emphasised that a legitimate commercial rationale was not sufficient to demonstrate fair discrimination, and went on to highlight the need for religious tolerance in the workplace.

What the judgment means for employers:

* Employers must demonstrate that it is impossible to accommodate an individual employee without imposing undue hardship or insurmountable operational difficulty on them.

* An employer may not insist on an employee obeying a workplace rule where a refusal to obey that rule would have little or no consequence to the business.

* Employers must think carefully before they institute incapacity proceedings against employees who are unable to adhere to a specific workplace rule or practice.

* Employers must draw a distinction between employees who arbitrarily disobey a lawful instruction and those who have a legitimate reason based on religious beliefs or other constitutionally protected rights.

* On incapacity-related matters, employers are duty-bound to try to accommodate employees who are unable to render services as normal.

The Saturday Star