The answer to this question depends on the circumstances but note the Labour Appeal Court decision in the case of TDF Network Africa (Pty) Ltd v Deidre Beverley Faris where the employee who is an Adventist (religion known as Seventh day Adventist) and refused to work on a Saturday due to religiously reasons held, inter alia, that:
“An employment practice that penalises an employee for practising her religion is a palpable invasion of her dignity in that it supposes that her religion is not worthy of protection or respect. It is a form of intolerant compulsion to yield to an instruction at odds with sincerely held beliefs on pain of losing employment. The employee is forced to make an unenviable choice between conscience and livelihood. 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. The duty of reasonable accommodation imposed on the employer is one of modification or adjustment to a job or the working environment that will enable an employee operating under the constraining tenets of her religion to continue to participate or advance in employment.”
The employer would be required to show that it requirement that its employees work overtime on a Saturday and/or public holiday is indeed
an inherent requirement of the job, that is essential for the actual conducting of the job, and not merely for the advancement of profit, and
if such is an inherent requirement of the job then the employer is required further to show that there is no suitable reasonable accommodation, before it would be found that an employer can impose on an employee to work overtime, or on a Saturday and/or public holiday.
Although this case dealt primarily with discrimination based on religious grounds, not all cases will be similarly decided. For example in the case of Food and Allied Workers Union and Others v Rainbow Chicken Farms (Rainbow Chickens), a distinction was drawn when the Muslim employees complained that they were being discriminated against on the basis of their religion in that they were made to work on Eid. The court made clear distinction between the Eid holidays and that of Christmas in that the former is not a declared public holiday and the latter it is not.
Considerations such as the operational requirements of an organization will also be taken into account and in the case of TDF it was clear that the “stock-taking” could and did continue in the absence of Faris whereas in the case of Rainbow Chickens, had the Muslim employees not worked, the operations were not have been able to continue.
Further the case of TDF supports upholding the constitutional values of tolerance and diversity which are the underlying principles on which our Constitution stands.
On the one hand, as an employer you have an obligation to reasonably accommodate an employee’s religion in this comes with its own difficulty as you would need to have regard to your operational requirements, commercial rationale and on the other hand an employee cannot automatically expect an employer to distinguish and differentiate between him/her and other employees based purely on religion and/or that as a consequence of his/her religion that he/her is automatically entitled to be reasonably accommodated.
It is clear if you are an employer before making decisions which may have the effect of infringing an employee’s constitutional rights, you need to know and understand South African employment laws, which can be complex and daunting particularly in view of the fact that such laws are applied with consideration to equity and fairness.
NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za
