14 Jan Unfair dismissal: what constitutes employer discrimination?
Section 187 (1) of the Labour Relations Act (“LRA”) states that a dismissal is automatically unfair if, amongst others, 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, mental status or family responsibility”
In the recent Labour Appeal Court judgement of TFD Network Africa (Pty) Ltd v Faris  ZALAC 30, TFD appealed the decision of the Labour Court, which held that the dismissal of Faris was automatically unfair on grounds of religious discrimination.
The company had employed Faris as part of a graduate management training programme. As part of standard company procedure, the company would conduct stock take on one Saturday of each month. Faris could not attend any of the stock takes as she was a member of the Seventh Day Adventist Church and observed the Sabbath from sunset on Friday until sunset on the following Saturday.
This situation existed for 12 months prior to TFD instituting a disciplinary hearing. Faris was then dismissed as a result of her non-attendance at the compulsory stock takes.
The company argued that the stock take was a vital aspect of the training programme. Furthermore, all the managers had to be a part of the stock taking and there could not appear to be separate rules applied, as this could possibly lead other managers to think that the stock takes were not compulsory. While Faris understood the importance of the stock take, she still remained resolute that she was unable to work on Saturdays and could not request a special dispensation from her church as she considered it inappropriate to do so and in any case, such dispensation is permitted for those members of the church who perform essential services such as doctors and nurses etc.
Faris had made various alternative suggestions in an attempt to meet the employer halfway. She suggested she does the stock take on the Friday afternoon, alternatively, the Sunday. These suggestions were all rejected by the employer.
The court held that it was the employer’s responsibility to accommodate an employee’s religious freedom unless it would cause itself undue hardship by doing so. The court was of the view that TFD did not do enough to attempt accommodating Faris in the performance of her duties and advancement in employment.
What a court will consider compliance with an employer’s responsibilities will depend on each case. Employers are expected to be more flexible in the application of their policies in order to accommodate affected employees and not to be seen or found to be unfairly discriminating on the employee.
We would caution against a one-size fits all approach by employers, as this can be a tricky path to navigate. We recommend that expert legal counsel is sought in order to ensure that employers are compliant.
Author: Athi Stoto, Director: Employment Law