In the coming weeks, South Africans of various faiths will observe significant religious holidays, including Easter. The tension between religion and workplace demands can cause issues for both employers and employees. These issues arise especially if job requirements are not explicitly and clearly stated in an employment contract.
This quandary placed employer Sun International Management Limited and a former employee at odds. The conflict centered on a claim of unfair dismissal, which came before the Labour Appeal Court.
Tension between religion and workplace demands
The Labour Appeal Court addressed the tension between religion and workplace demands. This was done in the case of Sun International Management Limited v Sayiti (JA13/23) [2024] ZALCJHB 411 (21 October 2024).
The court had to decide whether the employee’s dismissal was automatically unfair. The dismissal stemmed from the employee’s inability to perform an inherent requirement of the job. Specifically, he could not work between sunset on Friday and sunset on Saturday due to his religious beliefs.
The employee’s contract of employment stated, inter alia, that “…normal hours of work will be 08h30 to 17h00 Mondays to Fridays, with an hour for lunch.” It also added that, “due to the nature of the business, you will be required to work longer hours from time to time without additional compensation.”
Additionally, the employee’s employment contract included a job flexibility requirement clause. This clause stated that the employee might be required to perform work in other roles or departments. It also warned that disciplinary action could follow if the employee refused such assignments. At the time of his appointment and contract signing, the employee agreed to the terms and did not raise any concerns.
Weekend work and religion
Soon after starting the job, the employee informed the employer that he could not travel or attend work events during the Sabbath. He based this on his religious beliefs, as he identified as a Seventh Day Adventist.
The employer accommodated the employee’s request for a period of 16 months. During this time, they reassigned his duties during the Sabbath to other employees, including a line manager. However, due to capacity constraints, this arrangement became unsustainable. Consequently, the employer convened an incapacity process and hearing.
The employer argued that weekend work was an inherent requirement of the position. They offered the employee an alternative job that did not require weekend work. However, the new role came with a 45% salary reduction. The employee rejected this offer. As a result, the employer terminated his employment on the basis of incapacity.
Labour law and religious rights
The Labour Court found the dismissal to be automatically unfair. The court ruled that the dismissal violated section 187(1)(f) of the Labour Relations Act. It also found that the employer had discriminated against the employee under section 6 of the Employment Equity Act 55 of 1998.
However, on appeal, the Labour Appeal Court reached a different conclusion. The majority judgment found that the dismissal was not automatically unfair. This was because weekend work constituted an inherent requirement of the job.
The court explained that weekend work was necessary because the position involved attending and hosting critical events. These events were essential for the company’s operations, including national and international trade shows. Therefore, the role required flexibility and availability for weekend events, especially those involving trade shows and promotional activities.
The Labour Appeal Court concluded that this obligation was rationally connected to the job’s core purpose. It was also essential for fulfilling the role’s responsibilities. Furthermore, the court acknowledged that the employer had made reasonable efforts to accommodate the employee’s religious beliefs.
The employer had allowed the employee to avoid weekend work for 16 months. They also offered him an alternative role as a sales coordinator. This role did not require weekend work. Unfortunately, the new position came with a lower salary, which the employee declined. These actions showed that the employer made sincere efforts to balance the employee’s religious practices with business needs.
Key takeaway from the case
Employers must carefully substantiate whether a job includes an inherent requirement. They must also show that they have made adequate efforts to accommodate the employee, where relevant.
The specific facts and circumstances play a crucial role. Employers need to assess these carefully in cases where an employee cannot, or chooses not to, meet an inherent job requirement. This includes situations where the refusal is based on religious beliefs.
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| Lynsey Foot | Associate | mail me | |  |
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| | Cliffe Dekker Hofmeyr (CDH) | | |
