Although South African employment legislation seeks to prohibit direct and indirect discrimination in the workplace, the interplay between discrimination on the grounds of religion and the inherent requirement of a job remains a contentious issue. The Labour Appeal Court (“LAC”) recently dealt with this issue in Sun International Management Limited v Sayiti.
The facts
The employee in this matter, Mr Sayiti, was appointed to the position of Group Manager: Sales with Sun International Management Ltd. His contract of employment included the following key provisions:
- His normal working hours would be from 08h30 to 17h00 on Mondays to Fridays.
- Due to the nature of the business Sun International conducts, Mr Sayiti would be expected to work longer hours from time to time without additional compensation.
- Sun International would have the right to transfer Mr Sayiti between roles within and across departments as required by the company's operational needs. Failure to comply with such a transfer could result in Sun International taking disciplinary action.
Mr Sayiti signed the employment contract without raising any issues at the time. Sun International expected Mr Sayiti to attend trade shows which would often run over weekends. Two months after he commenced employment, Mr Sayiti disclosed that he is a Seventh-Day Adventist and could therefore not travel to, or attend, events which took place during his Sabbath (from sunset Friday to sunset Saturday). Sun International initially took no issue with this and sought to accommodate Mr Sayiti's religious practices by allowing him to not work during the Sabbath. Ms Beattie, his line manager, performed Mr Sayiti's responsibilities during the Sabbath, which included travelling to and representing Sun International at various trade shows.
This position persisted for a period of 16 months until it became untenable for Ms Beattie to assume Mr Sayiti's functions on the Sabbath due to capacity constraints arising from increased responsibilities. When Mr Sayiti refused to take over these functions, Sun International convened what it termed an” incapacity inquiry” chaired by an independent chairperson. During the inquiry, Sun International argued that working on Saturdays was an inherent requirement of the job. The independent chairperson agreed that this was the case and recommended that Mr Sayiti be offered an alternative position which would not require him to work during his Sabbath. Mr Sayiti was subsequently offered the position of Co-ordinator: International Sales at a 45% salary reduction, which offer he refused. Accordingly, Sun International terminated Mr Sayiti's employment for incapacity based on the inherent requirements of the job.
The Labour Court
Mr Sayiti then referred a dispute to the Labour Court and relied on section 187(1)(f) of the Labour Relations Act (“LRA”) to argue that his dismissal was automatically unfair in that the dismissal constituted unfair discrimination based on his religion.
Sun International accepted that there had been discrimination against Mr Sayiti on the grounds of his religion but argued that the dismissal was fair. In making this argument, Sun International relied on section 187(2)(a) of the LRA which provides that a dismissal may be fair if the reason for the dismissal is based on the inherent requirement of the job.
The Labour Court found that Sun International had failed to prove that working on weekends was an inherent requirement of his job, as Mr Sayiti's employment contract did not explicitly include a provision that he must work on weekends. It went on to also find that Sun International failed to demonstrate that Mr Sayiti could not be reasonably accommodated and held that Mr Sayiti was automatically unfairly dismissed.
The Labour Appeal Court (LAC)
Sun International was granted leave to appeal to the LAC. The Court considered two issues. The first was whether working on weekends was an inherent requirement of the job. The second was whether Sun International had been under a duty to accommodate Mr Sayiti and, if so, whether Sun International had complied with this requirement.
Interestingly, the LAC's judgment was one of the rare occasions where the judgment consisted of a majority and a minority judgment. Both judgments followed an earlier decision of the LAC in TFD Network Africa (Pty) Ltd v Faris in which the LAC stated that a requirement would be an inherent requirement if the employer establishes that:
- the requirement is adopted for a purpose rationally connected to the performance of the job and in accordance with a good faith belief that the requirement is necessary for the fulfilment of that legitimate work-related purpose;
- the requirement is reasonably necessary for the accomplishment of the legitimate work-related purpose, and
- it is impossible to accommodate the individual employee without imposing undue hardship on the employer.
Both judgments also accepted that the employer had established that working on weekends constituted an inherent job requirement – even though My Sayiti's contract did not explicitly state that he would be required to do so.
Both judgments also accepted that Sun International had been required to attempt to take reasonable steps to accommodate Mr Sayiti's religious convictions. However, the majority and minority judgments differed in their assessment of whether Sun International had, on the facts, taken reasonable steps to accommodate Mr Sayiti. The majority considered the following facts:
- Mr Sayiti had experience in the hospitality industry prior to his employment at Sun International and yet sought employment in a position that manifestly required flexibility to work during the weekend, including on Saturdays.
- When Mr Sayiti eventually disclosed that, due to his religious beliefs, he could not work during the Sabbath, Sun International did not challenge this but rather sought to accommodate him immediately. It did this for a period of 16 months.
- The accommodation of a Muslim employee's religious beliefs could not be compared to that of Mr Sayiti as the Muslim employee only requested to be accommodated for Friday prayers which did not pose significantly onerous disruptions to Sun International's operations as the Muslim employee only needed time off during specific and limited hours on Fridays.
- When it became unbearable for Ms Beattie to take over Mr Sayiti's responsibilities during the Sabbath, Sun International offered Mr Sayiti an alternative position, which he refused to take.
The majority judgment held that Sun International had reasonably accommodated Mr Sayiti's religious beliefs until it was no longer possible to do so without imposing an undue hardship on the employer. Insofar as Mr Sayiti refused the alternative position offered to him because of the significant reduction in remuneration, the majority judgment held that Sun International had no legal obligation to create a new position for the sole purpose of accommodating Mr Sayiti.
Key Takeaways
This judgment illustrates the point that the question of whether there is an inherent requirement of the job and whether the employer has taken sufficient steps to accommodate an employee is essentially a factual question and employers must take care to establish both these elements.
Also of interest is the reference made by the majority judgment to section 6 of the Employment Equity Act. This section also prohibits unfair discrimination based on an employee's religion and also provides an employer with a defence based on the inherent requirements of the job. But, whereas section 187(2)(a) of the LRA provides that reliance on the defence of an inherent requirement of the job may render the dismissal fair, section 6(2) of the EEA states that a dismissal is not unfair if the reason for the dismissal is an inherent requirement of the job. It will be interesting to see how the Courts deal with this distinction in the future.
*Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment Department
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