As mentioned the legislation mentioned in chapters 1 and 2, above, such as the BCEA, the EEA and the LRA, does not contain express provisions that deals with the issue of the non- recognition of religious holidays in the workplace constituting unfair discrimination. Therefore, this chapter determines whether there is any South African case law that can be used to determine when does the non-recognition of a religious holiday(s) constitutes unfair discrimination in the workplace or is there a necessity for jurisprudence to be developed in this regard? This chapter includes relevant case law used to interpret the aforesaid legislative provisions. The courts have interpreted the case law, below, in accordance with the spirit, purport and objects of the Bill of Rights.84 The cases deal with religious discrimination in the workplace and religious discrimination in general.85 The case law not allow deals with religious holidays in the workplace but also other aspects relating to religion, such as symbols in the form of dress codes, hair and accessories, with the view that the case law might influence employers or the legislature to regulate religious holidays in the workplace.
In the Lawrence case,86 Chaskalson CJ stated obiter that:
. . . constraints on the exercise of freedom of religion can be imposed in subtle ways and that the choice of Christian holy days for particular legislative purposes may be perceived to elevate Christian beliefs above others; and that as a result adherents of other religions may be made to feel that the state accords less value to their beliefs than it does to Christianity.87
Clearly, the Lawrence case forms a central point to the issue of whether the non-recognition of religious holidays in the workplace may constitute unfair discrimination. It re-assures the reader that the right to freedom of religion is not an absolute right and it may be limited.
84 See s 39 (2) of the Constitution.
85 Religious discrimination in general is relevant because there are cases that deal with religious discrimination in the workplace, but there are not many cases that deal with religious holidays in the workplace and the non- recognition thereof. Hence religious discrimination in general may be used as a guideline in the context of this mini-dissertation.
86 n 15 above. 87 at par 93.
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However, it may be limited in “subtle ways”. What may be subtle for one individual may constitute a violation of a fundamental right of another individual.
In the case of Food and Allied Workers Union (FAWU) v Rainbow Chicken Farms,88 the employees, Muslim men, were butchers who were dismissed due to insubordination as they took unauthorised leave to celebrate the Muslim religious holiday of Eid ul Fitr. The employees alleged that their dismissal constituted an unfair discrimination due to their religious beliefs and based their claim on section 187 (1) (f) of the LRA.
Revelas J found that all the employees was not required to work on a gazetted public holiday but were required to work on Eid, which was not a gazetted public holiday. Revelas J acknowledged that there was a collective agreement, that required the Islamic employees to work on Eid ul Fitr and Eid ul Adha, and that the latter employees were bound by this agreement.
Revelas J observed that:
[a]ccording to the collective agreement . . . “[i]slamic employees required to celebrate Eid ul Fitr and Eid ul Adha each year, may be granted reasonable unpaid time off, subject to the employees concerned making the necessary arrangements with their appropriate manager prior to the date. Due to business constraints all employees may not be granted time off at the same time.”89
Revelas J also pointed out that:
an employer's refusal to permit an employee to celebrate his or her religion constituted unfair discrimination . . . where it was established that a particular employer permitted only some employees to take a day off to celebrate their religion, whereas other 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. If all the butchers are given the day off on Eid, no work could be done on Eid, and all the . . . 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 [complainants] were specifically employed because they are Muslims. It was
88 2000 21 ILJ 615 (LC).
27 an operational requirement [that the complainants worked on a day that was not a public holiday considering the constraints of the business, the financial considerations and the interruption of production, and the fact that all the other employees’ work was dependent on the slaughterers. The employer did not consider the complainants alternative proposals such as working on Saturdays and overtime, so that any loss of production caused by their absence during the religious holidays could be made up, as it would have impacted on the rest of the workforce.] Consequently . . . the [employer’s] conduct, by not consenting to giving the butchers the day off on Eid, [does not] amount to unfair discrimination as envisaged by s 187(1) (f) of the Act.90
The FAWU case sets out principles to determine when the non-recognition of religious holidays may constitute unfair discrimination in the workplace. Some may argue the FAWU case illustrates that:
• employees have no automatic right to observe a religious holiday apart from those gazetted as public holidays;
• automatic unfair discrimination, based on religion, is not present when an employee is denied time off to celebrate a religious holiday by an employer;
• Christian employees have the right to be absent and to be paid on their religious holidays since some of their religious holidays are gazetted public holidays;
• unfair discrimination is apparent if one or a few employees were allowed time off to celebrate a religious holiday while other employees, observing the same holiday, were not allowed time off; and
• the employer must consider the operational requirements such as the constraints,91 financial considerations and production interruption of the business, together with the impact on the workforce, as a whole, should the religious holiday be recognised. An example is where no work may be done because the employer allowed one, a few or all the employees, off, to celebrate their religious holiday and this led to employees not entitled to celebrate the religious holiday receiving a day off.
90 Par 20 and par 21.
91 A constraint may be a curb that restricts a business from achieving an aim. Different businesses experience different types of constraints. There could be, example, and inter alia, environmental constraints, physical constraints, technological constraints, internal and external constraints, and time-related constraints.
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It is clear that the principle of reasonable accommodation, as discussed when viewing the cases below, was not referred to in the FAWU case. Some may argue that reasonable accommodation should have been employed in the FAWU case. The employer should have reasonably accommodated the Muslim employees by, for example, considering reducing or re-arranging the working hours, working schedule or work share.
The collective agreement, in the FAWU case, required the employees to work on their respective religious holidays. However, it allowed the employees reasonable unpaid time off, to celebrate such holidays, provided that the employees make the necessary arrangements with their superior before such religious holidays. The collective agreement also provided that not all the employees can take off at the same time due to the business constraints. Some may argue that there are two provisions in the collective agreement that could amount to potential unfair discrimination. Firstly, discrimination is present because Muslim employees are subject to leave without pay while this is not necessarily the case for the employees of the majority religion. Secondly, even though this was not an issue in the FAWU case as all the Muslim employees were prohibited from taking off on their religious holiday, there is discrimination present, because some Muslim employees may observe their religious holiday while others cannot.
Some may contend that there is a link between the Lawrence case and the FAWU case, for reasons discussed above and to follow. Some may argue that the findings of the FAWU case should be criticised because it illustrates that allowing all employees off for gazetted public holidays, which are also the majority religion religious holidays, produce the same results as allowing all employees off for the minority religion, non-gazetted, religious holidays like Diwali, Eid or Sukkot. It should be questioned whether the majority religion religious holidays should remain gazetted public holidays.
The mere justification that Christmas is a public holiday sweeps the question of fairness and equality under a carpet. Does it not amount to unfair discrimination when Christian employees are allowed time off to celebrate their religious holidays, as public holidays, while other employees are not that easily allowed time off to celebrate their religious holidays? Why must employees of a, different, minority religion mainly be burdened with the issue of unfair religious discrimination when the matter involves religious holidays in the workplace?
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Some may argue that the rule of allowing or not allowing an employee(s) to observe a religious holiday should be applied equally and consistently, irrespective of religion and gazetted public holidays.Employers should not consider whether no work may be done because of the religious holiday of one or more employees, as this is not considered when the Christian holy days are observed. We are left to accept the findings in the FAWU case, that Christian employees are only allowed to take paid time off on their religious holidays, not because their religious holidays have been subject to scrutiny, just like all the other minority religion religious holidays, but because their religious holidays are gazetted public holidays under the BCEA read with the PHA. Because of this there is obviously going to be apparent feelings of inferiority and discrimination amongst employees forming part of the minority religions in South Africa. This is a complex and sensitive issue and it should be addressed by the legislature.
In the Dlamini case,92 the complainants were security guards who had been dismissed because they refused to shave off their beards. The complainants alleged they had been subject to unfair discrimination due to their religious beliefs and based their claim in terms of section 187 (1) (f) of the LRA. The security company imposed inherent job requirements that required the security guard employees to, inter alia, follow a uniform dress code, to be neat and to be cleanly shaved.
Pillay J, defined the IROJ as being:
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.93
The court found that the IROJ that required the security guards to be ‘cleanly shaved’ did not form part of a central tenet of the security guards’ religious faith, and that the latter rule was applied equally and consistently to all of the security company’s employees. The court further found that the complainants picked and chose which religious rule they should follow. The court held that there must be a balance between religious practice based on faith and capital/commercial considerations based on reasonableness and rationality. The balance had to be struck sensitively as, generally, the workplace is home to a rainbow of religions.
92 n 28 above.
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The court further held that the employer was entitled to set a uniform dress code as a condition of employment and, in this case, adhering to the dress code was compulsory for realistic reasons relating to the nature of the job such as the need to be neat, to look like security guards and to project the employer as a security company that is distinctive from other security companies. An employer was obligated to reasonably accommodate the bona fide religious beliefs of the employee, however the employer must not suffer ‘undue hardship’ while doing so.
The Dlamini case does not deal specifically with religious holidays in the workplace. However, it does deal with the concept of religious symbols,94 in relation to the wearing of beards, and it illustrates when the non-recognition of a religious symbol may constitute unfair discrimination in the workplace. Since there is insufficient South African case law specifically dealing with the recognition of religious holidays in the workplace and as a result the instance when the non- recognition of these holidays may constitute unfair discrimination, the Dlamini case may be relevant in this regard.
Some may argue that the Dlamini case illustrates that:
• for discrimination to be present because the employer failed to recognise the employee(s) religious holiday(s), the employee must prove that celebrating the religious holiday forms part of a central tenet of the religion of that employee, the employee celebrates this holiday consistently and the holiday is celebrated in accordance with a bona-fide religious belief;
• unfair discrimination arises when the employer fails to reasonably accommodate a religious holiday(s) of the employee(s) unless the employer suffers undue hardship while doing so, or the IROJ prohibits the employer from reasonably accommodating or recognising the religious holiday(s), or the failure to accommodate or recognise such holiday(s) is applied equally and consistently; and
• the workplace is home to a rainbow of religions and, as a result, the principle of rationality requires that there be a balance between taking time off to observe a religious holiday(s) and the commercial needs of the business.
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In the Strydom case,95 the complainant was a music teacher and the complainant’s contract had been terminated by the church because he was in a same-sex relationship. The church alleged that there was an IROJ that prohibited the complainant from being in a same-sex relationship, as this was contrary to the church’s doctrine and contrary to holding the position, as alleged, of a church leader. The complainant could not rely on the EEA nor the LRA, since there was no employment relationship that existed between the complainant and the church, as the complainant was an independent contractor and not an employee. Therefore, the complainant brought a claim against the church based on the PEPUDA. The court found that the complainant only taught music to the children and did not hold the position of a church leader. The court found that the complainant had been unfairly discriminated against based on sexual orientation and lifestyle. As a result, the complainant’s dignity was impaired and the complainant’s right to equality infringed.
This case does not directly deal with religious holidays in the workplace, neither does it deal with employment. However, this case, and all the other cases discussed above and below, highlights the importance of dignity and equality in relation to an individual’s right to freedom of religion, by implication, in employment. It is clear that, in the case where an employer prohibits an employee from taking time off to celebrate a religious holiday, that employee’s right to freedom of religion, as well as the employee’s rights to dignity and equality are infringed.
In Lewis v Media 24 Ltd,96 the complainant, a Jewish man, was a sub-editor on a fixed term contract. The complainant had complained against being prevented from observing the Shabbat as the complainant was required to work, late at night, on two consecutive Fridays and the complainant claimed compensation for unfair discrimination after being dismissed.
Cheadle AJ held that:
[i]t is common cause that the [employer] does not have a policy on accommodating religious minorities. But even if the [employer] had such a policy, it could only be applied if the employee declared his or her religious affiliation. In the absence of a policy, it could only constitute discrimination if as a matter of practice the employer, knowing of the employee's religious affiliation, nevertheless prevented the
95 n 27 above.
32 employee from observing the employee’s religious beliefs and practices. The critical issue in this case is not the existence of such a policy or practice but whether or not the [employer] knew of the [complainant’s] religious beliefs and practices when it required him to work on the two Friday evenings because of the problems associated with production of the new edition.97
It was clear from the evidence that the employer did not know that the complainant was Jewish.
Therefore, the complainant had “failed to establish on [a] balance of probabilities that the [employer] knew of the [complainant’s] religious affiliation and that it required him to work on the Friday in breach of his religious beliefs and practices.”98
In addition, the complainant’s commitment towards his religious practice was not genuine as the complainant, himself, admitted to going to night clubs on Friday nights and not observing the Shabbat on Saturdays.
The Lewis case sets out principles to determine when the non-recognition of religious holidays may constitute unfair discrimination in the workplace. Some may argue, the Lewis case illustrates that:
• a religious holiday will be accepted, without any enquiry, if there is a religious practice or belief behind this religious holiday and it is continuous, and genuine; and
• whether there is a policy in the workplace accommodating religious holidays, discrimination is only present if the employer was aware of the employee’s religious holiday, and the practices and the beliefs behind such a holiday, and nevertheless prohibited the employee from observing such a holiday, while simultaneously prohibiting the employee from observing such beliefs and practices.
In the case of SA Clothing and Textile Workers Union (SACTWU) v Berg River Textiles - A
Division of Seardel Group Trading (Pty) Ltd,99 the complainant was dismissed for refusing to work on Sundays due to religious reasons. The complainant was a devoted Christian and a lay preacher. The Sunday work prohibition formed a central tenet of the complainant’s beliefs. The
97 At par 124.
98 At par 126.
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employer was aware of the complaint’s religious convictions for some time. The complainant had also lodged a grievance against working on Sundays. The complainant alleged that he had been subject to unfair discrimination due to religious reasons and he based his claim in terms of section 187 (1) (f) of the LRA.
The court in SACTWU relied on the POPCRU case and summarised the requirements for a successful claim based on religious discrimination in the workplace. The court's requirements may, by implication, be used to determine if unfair discrimination is present when the matter involves the employer not recognising the employee’s religious holiday in the workplace.
The court in the SACTWU case held that the requirements for a successful claim based upon religious discrimination in the workplace appear to be thus:
[1] An ostensibly neutral workplace rule or policy which is applied to all employees may be