The Right to Freedom of Religion is enshrined under Section 15 of our Constitution as such it is a listed ground.
This means that if an employee alleges discrimination based on his religious beliefs the onus rests on the employer to disprove this allegation.
The employer could be the State or a privately owned company.
This may be a difficult task, however, the employer can raise a defence of inherent requirements of the job and is expected to show reasonable accommodation towards employees.
Section 6(1) of the Employment Equity Act (EEA) and Section 187(1)(f) of the Labour Relations Act gives effect to the freedom of religion.
In Dlamini v Green Four Security, security guards, members of the Nazarene church, were dismissed for refusing to shave or trim their beards because it was against their religious convictions to do so. They claimed that their dismissals were automatically unfair because of discrimination on religious grounds. The court held that the guards had been ‘somewhat selective’ about the religious rules they chose to follow and found that the employer had proved that the rule requiring the guards to be clean-shaven served a clear purpose, which in the context would be seen as an inherent requirement of a security officer’s job. The dismissal of the employees was upheld.
Although Section 36 of the Constitution limits the rights of individuals to freedom of religion, it is important to bear in mind that if an employee holds a belief which is subjectively taken to be central to their religion, the employer may be required to reasonably accommodate that employee. If an employer shows disregard without a reasonable reason, the employer may be in breach of the EEAct which could result in serious financial implications to the employer.
ABOUT THE AUTHOR
Sanvir Diplall obtained his BA and LLB degree from the University of KwaZulu Natal. He is currently pursuing his LLM in Labour Law. Sanvir works as a SEESA legal advisor at our Durban office.