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[2018] ZALAC 30
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TDF Network Africa (Pty) Ltd v Faris (CA 4/17) [2018] ZALAC 30; [2019] 2 BLLR 127 (LAC); (2019) 40 ILJ 326 (LAC) (5 November 2018)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA 4/17
In
the matter between:
TDF
NETWORK AFRICA (PTY) LTD
Appellant
and
DEIDRE
BEVERLEY FARIS
Respondent
Heard:
20 September 2018
Delivered:
05 November 2018
Summary:
unfair discrimination on religious ground –
Employee,
Adventist believer refusing to work on Saturdays because her religion
prohibits work on Sabbath day – employer dismissing
employee
for incapacity- employee contending that reason for dismissal was
because of her religion thus automatically unfair –
Labour
Court finding dismissal automatically unfair and substantively unfair
Appeal
limited to the automatically unfair dispute as Labour Court not
having jurisdiction to entertain fairness of dismissal in
the absence
of a consent by parties.
Court
finding that employee dismissed and discriminated against for
complying with and practising the tenets of her religion. The
enquiry
is whether the discrimination is fair, rationally connected to a
legitimate purpose and does not unduly impair or impact
on employee’s
dignity.
Held
that:
The
test for whether a requirement is inherent or inescapable in the
performance of the job is essentially a proportionality enquiry…In
general, the requirement must be rationally connected to the
performance of the job. This means that the requirement should have
been adopted in a genuine and good faith belief that it was necessary
to the fulfilment of a legitimate work-related purpose and
must be
reasonably necessary to the accomplishment of that purpose. In
addition, the employer bears the burden of proving that
it is
impossible to accommodate the individual employee without imposing
undue hardship or insurmountable operational difficulty.
Further
that, there is no evidence that the employer suffered any hardship at
all by employee being absent. She did not attend
stock takes for 12
months and there is no indication at all that her absence impacted on
the TFD’s ability to get the stock
takes done. Her presence was
not reasonably necessary for the accomplishment of the main purpose.
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.
As
regard the amount of compensation, court limiting the compensation
to12 months as the double compensation by the Labour Court
unfair.
Appeal partially upheld mainly on the amount of court- Labour’s
compensation.
Coram:
Davis JA, Murphy and Kathree-Setiloane AJJA
JUDGMENT
MURPHY
AJA
[1] The appellant, TFD
Network Africa (Pty) Ltd (“TFD”) appeals against the
judgment of the Labour Court (Mooki AJ)
holding
inter alia
that the dismissal of the respondent Ms. Deidre Faris (“Faris”)
was automatically unfair on grounds of religious discrimination
and
awarding her compensation.
[2] Faris was employed by
TFD in 2011 as part of its graduate management training programme.
TFD conducts business as a logistics
and transport service provider
and offers a warehousing and distribution service. The warehouse
normally holds substantial amounts
of customer stock and stock taking
is required over weekends on a monthly basis. The dismissal of Faris
arose from her refusal
to work on Saturdays on account of her being a
Seventh Day Adventist (“Adventist’), a religion in which
Saturday, the
seventh day, is the holy Sabbath. Adventists are
required to observe the Sabbath between sundown on Friday and sundown
on Saturday
evening during which time they are ordinarily not
permitted to work and must dedicate themselves to spiritual and
religious matters.
[3] Faris testified that
she was only interviewed telephonically and in the course of the
interviews, informed TFD that she was
an Adventist and could not work
on the Sabbath.
[4] TFD maintains that
there was an actual on site interview with the respondent in October
2011 in which she was told that she
would be required to perform
weekend work and to which she indicated she had no problem. TFD
claims it would not have employed
Faris if it had been aware that she
could not work on weekends, as it was an operational requirement of
the job that she participate
in stock-taking on Saturdays.
[5] Faris reported for
duty on 14 January 2012 to finalise her appointment, and was given an
employment contract which was explained
to her by Suzelle Stander
(“Stander”), the human resources officer at the time.
Faris testified that she told Stander
that she was an Adventist and
could not work on weekends. She said that Stander referred her to the
warehouse manager, Hilton Jordaan
(“Jordaan”) to whom she
also disclosed her position who then agreed not to roster her to work
on weekends.
[6] Both Stander and
Jordaan denied this version. Stander testified that she went through
the employment contract with Faris and
specifically explained that
she would be required to attend stock taking over some weekends.
Stander added that she would not have
referred Faris to Jordaan in
any event, as Faris would report to Mr. Jurie Smith and such issues
would have to be considered by
him. Jordaan testified that other than
being introduced to Faris that day, there was no discussion with her
about her religion
or rostering of work over weekends
[7] Faris signed her
written contract of employment on 20 January 2012, and commenced work
at the end January 2012. Clause 3.3 of
the employment contract reads:
‘
By
signing this contract, you undertake and agree to perform such
overtime duties as may be reasonably required of you from time
to
time, provided this does not exceed the limitations laid down in
relevant legislation.’
[8] Given the large
amounts of stock TFD carries for its customers, it is a business
requirement that a “wall to wall”
stock take be conducted
once a month. The stock take is conducted by all the managers of TFD
from the end of the business day on
a Friday through into Saturday
afternoon. All managers are rostered on a separate stock take roster,
over and above the normal
working shift, and managers are paid
overtime for this work.
[9] Faris testified that
she was never rostered to attend a stock take for the entire period
of her employment from January 2012
until her dismissal in December
2012. Jordaan, who was responsible for compiling the roster testified
that Faris was indeed rostered
to attend all the stock takes, along
with the other managers. Smith testified that he saw Faris’
name on the March, April
and July 2012 rosters with her name unmarked
as she was not in attendance. None of the rosters were tendered as
evidence at the
hearing. It is not disputed that there was a stock
take every month and that Faris did not attend any of them. The
propositions
that Faris failed to disclose her religious status and
was acting in defiance of the rosters are not supported by any
documentary
evidence and are disaffirmed by the fact that no
disciplinary action was taken against her in that regard during the
entire 12
months of her employment.
[10] Smith testified that
in March 2012, he checked the roster and found that Faris did not
attend. He asked her about it and she
explained she had “personal
commitments”, but said nothing about her religion. He stated
that being a manager, he accepted
her explanation and did not pursue
the issue further. Faris did not dispute this testimony, saying she
could not remember.
[11] When Faris did not
attend the April 2012 stock take, Smith confronted her on 23 April
2012. She told him that she was an Adventist
and that her religion
prohibited her from working on Saturdays before sunset. He told her
that she was required to attend the stock
takes and that he could not
make an exception for her. In response, Faris wrote to Felicia
Landsberg (“Landsberg”)
who was involved in her
recruitment seeking her assistance in procuring special
accommodation.
[12] After Faris failed
to attend the June and July 2012 stock takes, she was again
confronted by Smith on 30 July 2012 in a management
meeting and was
instructed to attend the stock takes. She told him that her religion
prohibited her from working the weekend. Faris
became emotional in
the meeting after Smith allegedly said he did not give a “fuck”
about her religion, and if he instructed
someone to be at work they
were expected to be at work. Faris further testified that during the
meeting, Jordaan said that Faris
was in fact not rostered to work and
Smith stated that Jordaan did not have authority to do this. Later
that day, Faris explained
to Smith in his office that she could not
work on Saturdays because of her religion. There is some difference
about how Smith re-acted,
but in the final analysis, it is clear that
he was unwilling to make an exception just for her. However, he
denied that he made
any derogatory statement about her religion as
Faris alleged.
[13] Smith confirmed that
he discussed the matter with Faris and explained to her, using the
example of Muslims and Eid, that he
could not accommodate her, as all
managers were obliged to attend stock takes.
[14] The matter was
escalated to the human resources department and a meeting was then
held on 22 August 2012 attended by Faris,
Smith, Christiaan
Serfontein (“Serfontein”), a human resources
administrator. Smith and Serfontein explained why attending
stock
takes is necessary in terms of its policy and urged Faris to comply.
It was explained that the stock take requirement applied
to all
managers, no matter what their background or beliefs. The parties
discussed suggestions on how to resolve the issue. Faris
persisted
with her contention that she is not permitted work on Saturdays. She
did not dispute the operational necessity for managers
having to
attend the weekend stock takes but remained adamant that she
personally could not compromise her religious beliefs.
[15] A second meeting was
held on 29 August 2012. Once more, it was explained to Faris that the
stock take requirements could not
be changed for one person, and all
managers had to attend the stock take. Faris again stated that she
understood this but added
that she could not compromise on her
religious convictions. It was suggested that she attend church on
Saturday and then come to
work afterwards, but she refused this.
[16] In his testimony
before the Labour Court, Smith explained his attitude as follows:
‘
I
then explain to her that, unfortunately, the nature of our business
it’s a requirement that we do a stock count over a weekend,
we
can’t move the stock take to a Sunday, due to the fact that we
change shifts on a Sunday and we start packing on a Sunday
night at
seven o’clock again, and that, because there’s 260 people
that work at this facility, it’s unfortunate
that I cannot give
into one religion, because then I, if I discriminate against the
other guys’ religion, I’m going
to have a problem,
because I’ve got people from all religions working at this
facility, and it is unfortunate that we have
to (indistinct) that I
can’t accommodate any specific person.’
[17] Referring to the
encounter after the meeting of 30 July 2012, Smith elaborated:
‘
After
everybody left, she came back to my office and discussed me (sic) –
because of what I said, that everybody needs to
attend the stock
count, and she came back and said but she can’t because of her
religion. And I explained to her that I,
unfortunately, as much as I
would love to assist, I cannot give her the opportunity to – or
give her off, not to attend the
stock count, because of the different
religions that work for us, and that it’s imperative that the
management should attend
the stock count, because that’s part
of the graduate training programme as well. I need to train her to
become a manager,
and it’s part of our succession planning.’
[18] Under
cross-examination, Smith explained his concerns about succession
planning raised in the meeting with Serfontein as follows:
‘
I
discussed with Christian the fact of what’s the position, or
what’s the requirement from the graduates, and what’s
the
reason being that we want her to attend the stock count, and the
reasons for them attending the stock count, as it is a long-term
goal
of ours to bring the guys through the ranks and train them…So
we do it as part of our succession planning, bring these
guys through
the ranks. And that if I can’t train her in all the aspects of
being a manager there, it’s worthless to
me if I can’t do
that, because then we failed in our graduate programme.’
[19] He continued later:
‘
[I]t’s
a long-term goal and it’s a long term succession planning, and
that that’s required of that position, to
be able to do that,
and I cannot train people if they’re not prepared to come to
work on a Saturday to do the stock count,
because there’s no
other time that I can do it, except for over a weekend where we do
sock count. There’s no other
time we can do stock count,
because I can’t stop the business to count stock.’
[20] He concluded his
rationale as follows:
‘
[H]ow
can she ever manage any of these departments if she hasn’t got
the experience, if she doesn’t have the know-how
how to do it?
And how can she manage her people by not being present at the stock
count…..for this graduate programme, and
the long-term goal of
this graduate programme is to train these people to have them set-up
as the next managers in this business.’
[21] Incapacity
proceedings were then initiated and after a hearing Faris was
dismissed for incapacity on 20 December 2012. As mentioned,
Faris was
never disciplined for allegedly failing to disclose her religious
status at the time of her recruitment or for failing
to report for
Saturday work in accordance with the roster.
[22] After conciliation, the Commission for Conciliation, Mediation
and Arbitration (“the CCMA”) issued a certificate
of
outcome on 5 March 2013 declaring that the dispute concerning “an
alleged unfair discrimination based on religious grounds”
remained unresolved and noted that the dispute could be referred to
the Labour Court. In her statement of case, Faris contended
that her
dismissal was procedurally and substantively unfair, automatically
unfair and that she was unfairly discriminated against
by TFD on the
basis of her religion and belief.
[23] TFD in its
answering statement contended that Faris had been dismissed for
incapacity and that in terms of section 191(5) of
the Labour
Relations Act
[1]
(“the LRA”) the Labour Court had no jurisdiction to
enquire into the fairness of any dismissal based on incapacity,
though it accepted that the court could determine whether the
dismissal was automatically unfair. The fairness of dismissals on
grounds of incapacity is to be determined by the CCMA or bargaining
councils with jurisdiction. Despite the objection, the Labour
Court
determined the fairness of the dismissal for incapacity and concluded
it was substantively and procedurally unfair. It also
concluded that
the dismissal was automatically unfair.
The
approach was erroneous. Once it found the dismissal to have been
automatically unfair, the Labour Court should not have considered
whether the dismissal was substantively and procedurally unfair as
well. It is only when a dismissal is not automatically unfair
that
the fairness of such dismissal based on considerations of substance
and process can be considered and then the parties must
consent to
the Labour Court assuming the role of arbitrator.
In
terms of section 158(2) of the LRA, the Labour Court may only
determine an incapacity dismissal with the consent of the parties
and
if it is expedient to do so. TFD did not consent in this case.
Accordingly, the dismissal issue must be limited in this appeal
to
determining whether the dismissal was automatically unfair.
[24] Section 187(1)(f) of the LRA renders a dismissal automatically
unfair if:
‘…
the
reason for the dismissal is that the employer … unfairly
discriminated against an employee, directly or indirectly, on
any
arbitrary ground, including, but not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age,
disability,
religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility.’
[25] The automatically unfair dismissal claim, in this case, is
founded on Faris’ religion. She carries the evidentiary burden
to show that her religion was the true or real or dominant reason for
her dismissal and that a sufficient nexus exists between
her
dismissal and her religion. TFD does not dispute that Faris is an
Adventist, but has disputed whether it is one of the tenets
of the
religion that Adventists may not work at all on the Sabbath. It
pertinently required this tenet of the religion to be proved
at
trial, and in the pre-trial minute called on Faris to provide expert
evidence in this regard.
[26] In
SACWU
and Others v Afrox Ltd,
[2]
when dealing with an automatic unfair dismissal in terms of section
187(1)(a) of the LRA – dismissal for participation in
a
protected strike - this court said the following:
‘
The
enquiry into the reason for the dismissal is an objective one, where
the employer's motive for the dismissal will merely be
one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I can
see no reason
why the usual twofold approach to causation, applied in other fields
of law, should not also be utilized here ...
The first step is to
determine
factual
causation: was participation or support, or intended participation or
support, of the protected strike a
sine
qua non
(or prerequisite) for the dismissal? Put another way, would the
dismissal have occurred if there was no participation or support
of
the strike? If the answer is yes, then the dismissal was not
automatically unfair. If the answer is no, that does not immediately
render the dismissal automatically unfair; the next issue is one of
legal
causation, namely whether such participation or conduct was the
'main' or 'dominant', or 'proximate', or 'most likely' cause of
the
dismissal. There are no hard and fast rules to determine the question
of legal causation.’
[27]
Section 187 of the LRA imposes an evidential burden upon the employee
to produce evidence which is sufficient to raise a credible
possibility that an automatically unfair dismissal has taken place.
It then behoves the employer to prove the contrary by producing
evidence to show that the reason for the dismissal did not fall
within the circumstances envisaged in section 187 for constituting
an
automatically unfair dismissal.
[3]
[28] TFD submits that the
most dominant reason for the dismissal of the respondent was not her
religion, but her refusal to work
on Saturdays. It has always
required all its managers, no matter who they were or what their
background was, to attend stock takes
once a month from Friday to
Saturday. Moreover, the contract of employment specifically makes
provision for such overtime work,
which Faris agreed to when
commencing employment, despite her religion. Thus, it argued,
religion was not the
sine qua non
. The refusal to do the stock
take was the dominant reason for the dismissal, and not Faris’
personal convictions that underlay
it. Her religion, therefore, TFD
contends, played no role in the motivation to dismiss her.
[29] TFD also argued that
Faris failed to prove that the tenets of her religion absolutely
forbid work on Saturdays. As mentioned,
TFD specifically placed this
in dispute. No expert evidence was tendered. The mere
ipse dixit
of Faris, TFD submitted, was insufficient to prove the tenets of her
religion. At the very least, it was necessary to call a pastor
of the
church to establish that it was impossible for her to obtain a
special dispensation to work on a Saturday once a month.
She
accordingly failed to prove that her religion
per se
prohibited her from working on a Saturday. Her personal views
of what her religion required of her are insufficient.
[30] Faris conceded in
her testimony that exceptions are made for doctors or nurses or
persons doing essential service work. However,
she made it clear that
stock taking did not fall into the exceptional humanitarian category.
Her decision not to work on a Saturday
was one of faith and
conscience-based not only upon the tenets of the Adventist faith but
also her subjective understanding of
the tenets. She elected as a
matter of conscience not to seek a special dispensation from her
church as she considered it inappropriate
to do so.
[31] TFD’s
contentions are not sustainable. Firstly, the dismissal would not
have occurred if Faris had not been an Adventist.
Had she not been an
Adventist she would have willingly worked on a Saturday. The evidence
suggests that her work performance was
exemplary in all other
respects. It is disingenuous to argue that her non-availability on
Saturdays was the reason for her dismissal
without having regard to
the underlying reason for her non-availability. But for her religion,
she could have worked on a Saturday
and would not have been
dismissed. Her religion was the dominant and proximate reason for her
dismissal.
[32]
The tenets of the Adventist religion are notorious or at least
readily ascertainable. They can be obtained from sources of
indisputable authority. And it is permissible for a court tasked by
the LRA to do equity and advance social justice in expeditious
dispute resolution, to take judicial notice of notorious facts of a
sociological or religious nature by consulting works of reference.
[4]
According to the website Christianity.com, Adventists may not partake
of secular labour on Saturdays, with exceptions made for
emergency
humanitarian work. It hardly needs saying that stock taking in
pursuit of profit does not fit the mould of the category
of
exception.
[33]
The argument that Faris ought to have sought exemption from her
church, and the suggestion that the tenet was not central to
the
Adventist religion because adherence to it was voluntary, amounts to
a call to restrict the scope of the right to freedom of
religion. It
is at least doubtful that an exemption for non-humanitarian work was
possible, but even were it possible, such conflicted
with Faris’
conscience and her subjective interpretation of her religious duties.
There are adherents to a religious creed
who may not be obliged to
observe a certain practice but feel that it is central to their
identity that they do so. They too are
entitled to protection in our
constitutional order.
[5]
The
weight to be given to the consideration of whether a practice is a
central tenet of the religion and the nature of the enquiry
was
examined by the Constitutional Court in
MEC
for Education, KwaZulu-Natal v Pillay
[6]
where it held:
‘
A
necessary element of freedom and of dignity of any individual is an
‘entitlement to respect for the unique set of ends that
the
individual pursues.’ One of those ends is the voluntary
religious and cultural practices in which we participate. That
we
choose voluntarily rather than through a feeling of obligation only
enhances the significance of a practice to our autonomy,
our identity
and our dignity…The protection of voluntary as well as
obligatory practices also conforms to the Constitution’s
commitment to affirming diversity. It is a commitment that is totally
in accord with this nation’s decisive break from its
history of
intolerance and exclusion. Differentiating between mandatory and
voluntary practices does not celebrate or affirm diversity,
it simply
permits it. That falls short of our constitutional project which not
only affirms diversity, but promotes and celebrates
it.’
[34]
That
is not to say that the objective centrality of the tenet to the
particular religion is not relevant. As will appear later,
centrality
has particular relevance to any limitation analysis justifying the
proportional restriction of the right and whether
reasonable
accommodation is possible. Centrality must be judged with reference
only to how important the belief or practice
is to the applicant’s
religious identity. This permits consideration of a range of evidence
including evidence of the objective
centrality of the practice to the
religious community at large. But that evidence is relevant only in
so far as it helps answer
the primary enquiry of subjective
centrality. I will return to this issue when evaluating the legality
and fairness of TFD’s
operational requirement.
[35]
In conclusion then, there is no doubt that Faris was dismissed and
discriminated against for complying with and practising
the tenets of
her religion. The decisive enquiry in this appeal is whether the
discrimination is fair, rationally connected to
a legitimate purpose
and does not unduly impair or impact on Faris’ dignity.
In
the context of the LRA, the fairness enquiry coincides in most
respects with the determination of whether the discriminatory
job
requirement falls within the exemption in section 187(2)(a) of the
LRA, which provides specifically that, despite section 187(1)(f),
a
dismissal may be fair if the reason for the dismissal is based on an
inherent requirement of the particular job.
Relevant
considerations in regard to fairness and the inherent requirements of
the job include the position of the victim of the
discrimination in
society, the purpose sought to be achieved by the discrimination, the
extent to which rights or interests of
the victim of the
discrimination have been affected, whether the discrimination
has impaired the human dignity of the victim,
and whether less
restrictive means are available to achieve the purpose of the
discrimination.
[7]
[36]
TFD submits that it is an inherent requirement of the job to require
a manager to do a stock take once a month over a weekend,
where a
stock take is essential to its operations. In
Department
of Correctional Services and Another v Police and Prisons Civil
Rights Union and Others,
[8]
the SCA stated:
‘
An
inherent requirement of a job has been interpreted to mean “'a
permanent attribute or quality forming an . . . essential
element . .
. and an indispensable attribute which must relate in an inescapable
way to the performing of a job.”'
[37] The test for whether
a requirement is inherent or inescapable in the performance of the
job is essentially a proportionality
enquiry. Considering the
exceptional nature of the defence, the requirement must be strictly
construed. A mere legitimate commercial
rationale will not be enough.
In general, the requirement must be rationally connected to the
performance of the job. This means
that the requirement should have
been adopted in a genuine and good faith belief that it was necessary
to the fulfilment of a legitimate
work-related purpose and must be
reasonably necessary to the accomplishment of that purpose.
[38]
However, even if that is shown, the enquiry does not end there. In
addition, the employer bears the burden of proving that
it is
impossible to accommodate the individual employee without imposing
undue hardship or insurmountable operational difficulty.
[9]
In
SA
Clothing and Textile Workers Union and Others v Berg River Textiles -
A Division of Seardel Group Trading (Pty),
[10]
the Labour Court correctly and succinctly put it as follows:
‘
In
particular, the employer must establish that it has taken reasonable
steps to accommodate the employee's religious convictions. Ultimately
the principle of proportionality must be applied. Thus an employer
may not insist on the employee obeying a workplace rule where
that
refusal would have little or no consequence to the business.’
[39] TFD maintains that
the weekend stock take once a month achieved a proper, if not
critical, operational purpose at its business.
TFD carries stock of
substantial value in a warehouse and obviously must conduct regular
stock takes. A full stock takes over a
weekend once a month, when
normal weekly business operations have ceased, is necessary for the
efficient running of the business.
The stock take is designed also to
provide an opportunity to exercise supervision and control over the
personnel normally working
in the warehouse. It, accordingly,
requires managerial involvement. It is also intended to provide
managerial training. Stock takes
once a month over a weekend are thus
an essential component of a manager’s job.
[40] TFD contends further
that the limitation of Faris’s rights in achieving these
legitimate commercial purposes was minimal.
Faris was free to
exercise her religious beliefs in all other respects at all other
times except for the 12 days of the year when
she could be reasonably
expected to compromise by getting special dispensation from her
church, which would not be disproportionately
onerous. In its view,
her dignity and her position in society were not unjustifiably
affected.
[41] Moreover, TFD
contended there was a danger of opening the floodgates to other
employees who might similarly seek exemption
from Saturday work for
family or other reasons.
[42]
TFD relied on the decision of the Labour Court in
Food
and Allied Workers Union and Others v Rainbow Chicken Farms (Rainbow
Chickens),
[11]
concerning
Muslims who refused to work on Eid. The applicants, in that case,
contended that their dismissal for refusing to work
on Eid was an
automatically unfair dismissal based on their religion. The court
held:
‘
The
individual applicants were not discriminated against unfairly,
as envisaged by s 187 of the Act. All employees of the
respondent were required to work on Eid, which is not a public
holiday. …. The applicants' legal representative, Mr
Conradie
,
referred me to American cases where it was held that an employer's
refusal to permit an employee to celebrate his or her religion
constituted unfair discrimination. I would agree with the
aforesaid proposition, where it was established that a particular
employer permitted only some employees to take a day off to celebrate
their religion, whereas others were not permitted, provided
that the
granting of such permission does not have the result that no work can
be done because of the religious holiday of
one or more
employees.
In this case, Christmas (a public
holiday) is not a working day for any employee of the respondent. If
all the butchers are given
the day off on Eid, no work could be done
on Eid, and all the respondent's employees would have to take that
day off and be paid,
irrespective of whether they belong to the
Islamic faith or not. This, of course, is the case as well, insofar
as Christmas
is concerned. Christmas, however, is a public holiday,
and Eid is not. The individual applicants were specifically employed
because
they are Muslims. It was an operational requirement.
Consequently, I do not believe that the respondent's conduct, by not
consenting
to giving the butchers the day off on Eid, amounts to
unfair discrimination as envisaged by s 187(1)
(f)
of the Act.’
TFD submitted that what
holds true for Muslims should hold equally true for Adventists.
[43] Although it is
undeniable that the overtime requirement pursued a legitimate
commercial rationale adopted in a genuine belief
that it was
necessary for the fulfilment of a legitimate work-related purpose,
TFD’s justification ultimately does not withstand
scrutiny. In
particular, I am not persuaded that it was impossible to achieve the
object of the stock takes without reasonably
accommodating Faris. Her
situation was very different to that of the Muslim employees in the
Rainbow Chickens
case. In that case, had the affected
employees all been allowed to take leave, the factory would have
closed and the employer would
have suffered undue hardship. By
contrast, there is no evidence that the employer suffered any
hardship at all by Faris being absent.
She did not attend stock takes
for 12 months and there is no indication at all that her absence
impacted on the TFD’s ability
to get the stock takes done. Her
presence was not reasonably necessary for the accomplishment of the
main purpose.
[44] The real rationale
for insisting on Faris’ attendance at stock takes appears most
clearly from Smith’s testimony.
He had a rigid policy from
which he did not want to depart by making an exception. If he
accommodated Faris, he feared he would
be expected to accommodate
others. But his apprehension is not valid - the only persons likely
to require accommodation on the
grounds of observing the Sabbath on a
Saturday would be Adventists and Orthodox Jews. The evidence reveals
that Faris was the only
employee at TFD who required accommodation on
such grounds. The floodgates argument, in the circumstances of this
case, is misplaced,
unfounded and lacking in a rational basis.
[45]
Likewise, the submission that the requirement did not impact upon the
dignity of Faris fails to comprehend the intrinsic link
between the
tolerant observance of religious freedom and dignity. These values
are not mutually exclusive but enhance and reinforce
each other.
[12]
As stated earlier, some adherents to a religious creed observe a
certain practice because they feel it is central to their identity
to
do so.
[13]
TFD
seems indifferent to or not to understand that important precept of
our constitutional dispensation. Without question, 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.
In
such a situation, the dictates of fairness and our constitutional
values oblige the employer to exert considerable effort in
seeking
reasonable accommodation.
[46] The only possible
legitimate rationale justifying the non-accommodation of Faris is
that her attendance was an essential part
of her managerial training.
She needed to gain hands-on experience in the stock take process in
order to work as a manager. The
question then is whether it was not
possible to reasonably accommodate her in this respect without
imposing undue hardship on TFD.
[47] The record shows
that Faris made various suggestions about how she could be
accommodated. She offered to work on Saturdays
after sunset; she was
willing to work on Sundays; and she was available to work night-shift
or early shifts or longer hours on
the Thursday before the stock take
and in the first part of the stock taking process commencing on the
Friday in order to assist
prepare for the Saturday. Some of these
proposals were not practical solutions as the stock take needed to
finish on the Saturday
evening. However, there is no clear evidence
of any meaningful engagement about possible alternative means of
Faris acquiring the
know-how and insight into the stock taking
process sufficient for her to carry out her managerial functions. She
clearly believed
she could acquire the supervisory know how even if
she was not in attendance throughout the monthly stock take.
[48] TFD took an
erroneous approach to this matter. It assumed that it was incumbent
on Faris to come up with practical solutions
which suited its
preferred commercial rationale; and when she failed to make
suggestions to its liking it was entitled to dismiss
her. More is
required of an employer
. 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.
[49] The evidentiary
burden of showing undue hardship by non-compliance with the
requirement is on the employer. Beyond Smith’s
say so (that
practically stock takes could only take place on a Saturday) there is
insufficient evidence showing that Faris could
not have obtained the
requisite knowledge of the stock taking process by other means or
that it was not possible to develop her
in other managerial functions
and to advance her mainly in that direction. She herself believed it
was possible to acquire the
knowledge at other times and that she
could still have assumed a supervisory role with some measure of
accommodation. But there
was little inclination to try out her
suggestions. Moreover, it is common cause that she performed well in
all other aspects of
her job, and as already found, her absence did
not impede, delay or frustrate the stock taking process.
[50] In the premises, I
am persuaded that TFD did not reasonably accommodate Faris. It
follows that TFD failed to discharged the
evidentiary burden
necessary to sustain the defences of fair discrimination or that
under section 187(2)(a) of the LRA with the
result that the dismissal
was automatically unfair as contemplated in section 187(1)(f) of the
LRA.
[51]
The Labour Court awarded two amounts of compensation. It ordered
payment of compensation equivalent to 12 months’ remuneration
in respect of the unfair dismissal and an amount of R60 000 in
respect of unfair discrimination. The court did not adequately
set
out its reasoning in relation to the latter award but appears to have
based it on the alleged derogatory manner in which Smith
treated
Faris at the meeting of 30 July 2012. The evidence on that score is
contested and does not attain the standard required
to establish
liability under section 60 of the Employment Equity Act
[14]
which requires there to be discriminatory conduct by an employee
towards another employee and which is immediately brought to the
attention of the employer. This has not been proven. Moreover, the
award amounts to double compensation and is unduly punitive.
The
appeal should succeed to this limited extent. Although, Faris found
work six months after her dismissal, the award of 12 months’
compensation under section 194(3) of the LRA is a just and equitable
award vindicating the unjustifiable infringement of her
constitutional
rights.
[52]
During argument, counsel for Faris disclosed that he had been
instructed by Legal Aid and had thus agreed to the usual Legal
Aid
tariff. He argued however that in the event of the matter being
decided in favour of Faris, the court should order that costs
of
counsel be the ordinary costs of counsel and not be restricted to the
Legal Aid tariff. The court is sympathetic to counsel’s
request. This appeal is a serious and complex matter involving
constitutional issues which will impact not just on the parties
involved in this appeal but society as a whole. Legal Aid sought the
services of outside counsel to provide parity of arms. TFD
is a large
corporation with substantial financial and legal resources. It may be
expected to pay costs commensurate with those
of counsel that it
employed.
[53] In the result, the
following orders are made.
53.1 The appeal succeeds
to the limited extent set out in this order.
53.2 The order of the
Labour Court is set aside and substituted with the following:
‘
1.
The dismissal of the applicant is declared to have been automatically
unfair in terms of section 187(1)(f) of the LRA.
2. The respondent (TFD) is ordered to
pay the applicant compensation equivalent to 12 months’
remuneration in respect of her
dismissal, calculated at the rate of
remuneration at the date of her dismissal.
3. The respondent is ordered to pay
the costs of the application.’
53.3
The appellant (TFD) is ordered to pay the costs of the appeal
including the costs of counsel on the ordinary tariff.
JR Murphy
Acting
Judge of Appeal
I
agree
DM Davis
Judge
of Appeal
I
agree
F Kathree-Setiloane
Acting Judge of Appeal
APPEARANCES:
FOR
THE APPELLANT: Mr. Ruben Ortin
Instructed
by Snyman Attorneys
FOR
THE RESPONDENT: TS Sidaki
Instructed
by: Legal Aid Justice Centre Cape Town
[1]
Act 66 of 1995.
[2]
(1999) 20 ILJ 1718
(LAC) para 30
[3]
Kroukam v SA
Airlink (Pty) Ltd
(2005)
26
ILJ
2153 (LAC).
[4]
Consolidated Diamond Mines of
South West Africa Ltd v Administrator of South West Africa
1958 (4) SA 572 (A) 609
[5]
MEC for
Education, KwaZulu-Natal v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) paras 86-88
[6]
[2007] ZACC 21
;
2008 (1) SA 474
(CC) paras 63-66
[7]
Department of
Correctional Services and Another v Police and Prisons Civil Rights
Union and Others
(2013)
34 ILJ 1375 (SCA) at para 21.
[8]
(2013) 34 ILJ 1375
(SCA) at para 23.
[9]
See
British
Columbia (Public Service Relations Commission) v BCGEU
176 DLR (4
th
).
[10]
(2012) 33 ILJ 972
(LC)
at para 38.6.
[11]
(2000) 21 ILJ 615
(LC) 20-21.
[12]
MEC for
Education, KwaZulu-Natal v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) at paras 63
[13]
MEC for
Education, KwaZulu-Natal v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) at paras 86-88
[14]
Act 55 of 1998