The Constitution of the Republic of South Africa, 1996, is the supreme law of the land and all conduct and legislation must comply with it. The Bill of Rights contained in chapter 2 of the Constitution is often described as the cornerstone of our democracy and we must all respect and protect the rights enshrined therein. This also applies to all employers, which might create difficulty in a struggling economy and free marketplace where businesses must compete with each other in order for their enterprises to excel or even to just commercially survive.

It is inevitable in a country where such a myriad of rights is recognised and protected, that the operational requirements of employers will at some point have to compete with a human right enshrined in the Constitution. This is what happened in the case of TDF Network Africa (Pty) Ltd v Faris [2018] JOL 40638 (LAC) which came before the Labour Appeal Court (hereinafter referred to as the “LAC”) after the Labour Court found in favour of the employee.

The employer in this matter is a company specialising in logistical and warehousing services. The employee in the abovementioned case was dismissed for reasons relating to incapacity after the employee refused to work on Saturdays on account of her being a member of the Seventh Day Adventist Church. The employee’s right to freedom of religion clashed with the employer’s requirement that stocktaking had to be done once a month, which took place on Saturdays under the supervision of managers. The employee concerned was a manager and the employer accordingly argued that it was an inherent job requirement of the employee to be able to work on Saturdays.

In considering whether something qualifies as a legitimate inherent requirement of a job, the Court stated that “[t]he test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry” and that “[i]n general, the requirement must be rationally connected to the performance of the job.” The Court furthermore stated that “[t]his means that the requirement should have been adopted in a genuine and good faith belief” that it is necessary for the “fulfilment of a legitimate work-related purpose and… [that the requirement is] reasonably necessary… [for] the accomplishment of that purpose.” The Court went further and stated that it is “the employer [who] bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.”

In applying the test as set out above, the Court stated that it was not “persuaded” that the employer could not fulfil the object of stock-taking without accommodating the employee’s religious beliefs. The Court furthermore found that “there [was] no evidence that the employer suffered any hardship at all by [the employee] being absent” during stock taking on Saturdays. The Court based this conclusion on the fact that the employee in question did not attend the Saturday stocktaking sessions for a period of twelve months and that there was no evidence before the Court that the employee’s absence in any way impacted the employer’s ability to successfully conduct the stocktaking exercise. The Court accordingly found that the dismissal was unfair since the employer could not prove that the discrimination was fair in terms of section 187(2)(a) of the Labour Relations Act.

The LAC upheld the order of the Labour Court and awarded the employee the equivalent of twelve months’ compensation for the unfair dismissal. It is important for employers to be aware of the fact that dismissing an employee for incapacity due to religious reasons will often not be deemed fair in terms of the Labour Relations Act and the Constitution, even if such dismissal is motivated by a legitimate commercial rationale. It would only be potentially fair if the employer can show that it would incur undue hardship in accommodating such an employee.