Abstract
The right to freedom of religion is one of the fundamental human rights. This is evident from several sections of the Constitution of the Republic of South Africa, 1996 (the Constitution), including sections 9, 15 and 31. Section 9(4) prohibits unfair discrimination (whether direct or indirect) against anyone on one or more of the grounds listed in section 9(3), which includes religion. Section 15(1) states that everyone has the right to freedom of conscience, religion, thought, belief and opinion, while section 31(1)(a) provides that persons belonging to a religious community may not be denied the right to practise their religion with other members of the community.In line with the Constitution, labour legislation such as the Labour Relations Act 66 of 1995 (LRA) and the Employment Equity Act 55 of 1998 (EEA) also protects this right. Section 187(1)(f) of the LRA provides that if an employee is discriminated against and is dismissed based on religion, among other grounds, such a dismissal will be deemed to be an automatically unfair dismissal. Section 6(1) of the EEA prohibits unfair discrimination, whether direct or indirect, in any employment policy or practice based on prohibited grounds such as religion. It is evident from all the above provisions that the right to freedom of religion is vital to people’s lives, including employees’ lives.Although an employee has the right to practise religion, he or she also has the common-law duty to render services or to put his or her labour potential at the disposal of the employer as agreed in terms of the contract of employment – except during the employee’s annual leave, sick leave and maternity leave. An employee may therefore be in breach of this duty if he or she refuses to work or deserts his or her employment or absconds from his or her employment or is absent from work without permission. In addition to the above duty, employees have a duty to serve the employer’s interests and to act in good faith.
 Often, employees’ right to freedom of religion collides with their duty to render services and to serve the employer’s interests; employees present various reasons related to their religious practices for their failure to render services. As a result, employers are regularly required to be lenient and make efforts to accommodate employees’ religious beliefs in the workplace. At times, this becomes a burden to employers as they have to accommodate employees with diverse individual religious interests, but also ensure that their businesses remain operational. Religion remains one of the most contentious and problematic areas for employees and employers to deal with in the workplace.The discussion that follows evaluates the court’s finding in view of relevant constitutional provisions, labour law legislation and common law. It further considers the position under American law regarding religion and reasonable accommodation in the workplace.
Highlights
The right to freedom of religion is one of the fundamental human rights. This is evident from several sections of the Constitution of the Republic of South Africa, 1996, including sections 9, 15 and 31
Section 15(1) states that everyone has the right to freedom of conscience, religion, thought, belief and opinion, while section 31(1)(a) provides that persons belonging to a religious community may not be denied the right to practise their religion with other members of the community
Both the Employment Equity Act of 1998 (EEA) and the Labour Relations Act of 1995 (LRA) provide for the “inherent requirements of a job” to be one of the exceptions in unfair discrimination cases
Summary
The right to freedom of religion is one of the fundamental human rights. This is evident from several sections of the Constitution of the Republic of South Africa, 1996 (the Constitution), including sections 9, 15 and 31. “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.” (par 7) In terms of her religion, she was required to reserve Saturdays for her religious practices when followers of the religion are not permitted to work. The court considered the fairness of the discrimination – that is, whether it was connected to a legitimate purpose and whether it impacted unduly on Faris’s dignity In this regard, the court drew a distinction between TFD Network Africa v Faris (supra) and FAWU v Rainbow Chicken Farms ((2000) 21 ILJ 615 (LC)), which involved Muslims who refused to work on Eid. The court found that the company’s insistence that employees work on Eid had not amounted to unfair discrimination because had the employer allowed affected employees to take leave, the factory would have closed. The LAC found that the employer had an obligation to reasonably accommodate an employee’s religious freedom unless it imposed undue hardship on the employer; it upheld the award of 12 months’ compensation but discarded the R60 000 that the Labour Court awarded on the basis that it was unduly onerous
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