How far does an employer’s obligation stretch in accommodating an employee’s religious beliefs and practices in the workplace?
In South Africa, we live in a cosmopolitan world with different religions. In an ever-evolving working environment, the great challenge for employers is to accommodate all the different religions, as well as aligning all the employee’s respective rights.
In terms of section 15(1) of the Constitution of the Republic of South Africa, everyone has the right to freedom of religion.
Although individual rights are guaranteed in the constitution, they are not unlimited. In the workplace, the right to freedom of religion may, for example, be limited, by the employer’s right to freedom of economic activity (i.e. the right to conduct business). The opposite is, however, also true: the employer’s right can’t enjoy automatic preference over those of the employee.
The Labour Appeal Court in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others [2012] 11 BLLR 1099 (LAC) made the following observations:
“It would be disingenuous of anybody to deny that our society is characterised by a diversity of cultures, traditions and beliefs. That being the case, there will always be instances where these diverse cultural and traditional beliefs and practices create challenges within our society, the workplace being no exception. The constitution of the country itself recognises these rights and practices. What is required is a reasonable accommodation of each other to ensure harmony and to achieve a united society.”
Even though the courts provided some guidance in dealing with these challenges, it is to a great extend left to employers to use their discretion in striving for an amicable solution in every request and ensuring a harmonious working environment.
Here are some factors an employer should consider with every application or request from an employee, for exemption from the company’s policies and rules, due to religious beliefs:
• If it would impose an unreasonable burden on the employer to accommodate the employee, he/she may refuse to permit it;
• The employer should carefully consider the religious or cultural importance of the practice to the individual;
• The employer may require the employee to provide some credible proof (e.g. an affidavit from a religious minister) as to the centrality of the particular belief to the employee’s religion;
• The employer should investigate the grounds advanced by the employee to demonstrate that the belief exists;
• A reasonable accommodation is, in a sense, an exercise in proportionality and each case should be dealt with in isolation and the nature of the interests involved;
• It is accordingly clear that reasonable accommodation and the extent to which an employer will be burdened by the accommodation, will always be an important factor in the determination of the fairness of discrimination;
• The process and criteria followed by the employer must be consistently applied in the workplace;
• An employer should strive to grant an alternative or additional public holiday where it is possible in an attempt to accommodate the employee;
• Each case must be determined on its own merits, weighing up the nature of the objection and/or the motivation of the application for exemption from the rule;
• The employer will be entitled to refuse the exemption if it is an inherent requirement of the job;
• Evidence must show that the employee’s job performance would be adversely impacted by allowing the exemption, or that it would impose an unreasonable burden on the employer.
For more information regarding unfair discrimination contact your SEESA Legal Advisor, alternatively, leave your contact details on our website at www.seesa.co.za
About the author:
Eljo van der Walt obtained a Bachelor of Law (LL.B degree) from the University of the Free State in 2010 and obtained her Master of Law (LL.M degree) in 2011. She completed her articles in 2012. After admission, she practised as an attorney for 5 years before starting her career at SEESA in George as a Labour legal advisor.
Resources:
Legislation:
• Basic Conditions of Employment Act 75 of 1997
• Employment Equity Act 1998.
• Section 15 and 23 of the Constitution of the Republic of South Africa Case Law:
• MEC for Education, Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC).
• Department of Correctional Services and another and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (2013) 34 ILJ 1375 (SCA).
• Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 1 All SA 636 (SCA).
• TDF Network Africa (Pty) Ltd v Deidre Beverley Faris