Home

 

A dismissal arising out of a failure to work overtime for religious reasons may be found to be automatically unfair

Jacques van Wyk, Director; Andre van Heerden, Senior Associate and Chelsea Roux, Candidate Attorney, Werksmans Attorneys

 

Issue

Whether the dismissal of an employee who refused to work contractually agreed upon days due to the tenets of her religious convictions was automatically unfair?

 

Summary

An employer who seeks to dismiss an employee for refusing to work on normal work mandated days where the employee’s refusal is based on her religious beliefs must proceed with caution. Where the employee is dismissed it may give rise to an automatically unfair dismissal claim. This will be the case where the employee’s religious belief is found to be the dominant reason for her dismissal.

 

Court’s decision

In the case of TFD Network Africa (Pty) Ltd v Faris CA4/17 (LAC), the Labour Appeal Court (the “LAC”) had to consider the above issue.

 

Ms. Deidre Faris (“Faris”) was employed by the appellant, TFD Network Africa (Pty) Ltd (“TFD”), as a part of its graduate management training programme. Faris was a member of the Seventh Day Adventist faith (“Adventist”). In terms of her religious beliefs, Saturdays are the holy Sabbath. Faris observed the Sabbath between sundown on Friday and sundown on Saturday. During such period Faris was prohibited from performing any work in accordance with the tenets of her religious beliefs. TFD allocated Saturdays for stock taking as normal business operations and did not allow it to be done during the week or on Sundays. All managers where required to participate in stock taking and it formed part of their training.

 

Due to the commitment to her faith, Faris was unable and unwilling to attend stock takes. When TFD confronted her about her absence, Faris acknowledged the importance of stock taking but explained that she was unwilling to compromise on her religious convictions. Faris proposed alternative working arrangements to attend to the stock takes but TFD did not meaningfully engage with Faris in this regard. TFD subsequently dismissed Faris for incapacity. Faris referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the “CCMA”).

 

The matter remained unresolved at the CCMA and Faris referred the matter to the Labour Court.

 

The Labour Court found Faris’ dismissal to be automatically unfair for substantive and procedural reasons. The Court awarded her compensation.

 

TFD appealed to the LAC, arguing that the reason for Faris’ dismissal was the operational necessity that work be performed on a Saturday. In fact, Faris had agreed in her contract of employment to work over time duties as may be reasonably required from time to time. Notwithstanding the fact that she was informed she had to work on Saturdays, Faris refused to do so. The reason for her dismissal was therefore not her religious beliefs.

 

In determining whether the dismissal was automatically unfair or not, the LAC had regard to section 187(1)(f) of the Labour Relations Act (the “LRA”) which states that a dismissal will be automatically unfair if “the reason for the dismissal is that the employer…unfairly discriminated against an employee, directly or indirectly on any arbitrary ground including, but not being limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status, or family responsibility.” (emphasis added) The LAC took judicial notice of the tenets of the Adventist religion that no labour may be done on the Sabbath aside from emergency humanitarian work. The LAC then found that Faris had discharged the burden of showing that the dominant reason for her dismissal was her religion. Essentially, had it not been for her religion, she would have been available to work on Saturdays and would not have been dismissed. TFD could offer no compelling evidence rebutting this finding. Faris therefore succeeded in the first step of her claim by showing that the reason for her dismissal was discriminatory.

 

The LAC had to then consider whether the discrimination was fair. In order to do so the LAC had to consider whether any defence, in terms of section 187(2) of the LRA, was available to TFD. One such defence was whether the requirement to work on a Saturday was an ‘inherent requirement of the job’ (section 187(2)(a) of the LRA). The test to establish whether a task is an inherent requirement of the job is one of proportionality. This entails a two-step analysis. Firstly, the required task must be rationally connected to the performance of the job and be reasonably necessary to the accomplishment of that purpose. In other words, it must be necessary to the fulfilment of a work-related purpose. Secondly, even if a rational connection is found to be present, the employer has to prove that it would be impossible to accommodate the employee without imposing undue hardship on its business.

 

TFD thus had to prove not only that the stock taking was an inherent requirement of Faris’ job but also that it was impossible to accommodate Faris without incurring any undue hardship. The LAC held that Faris had not done stock taking for the 12 months she was employed at TFD and that no sufficient evidence was provided to show that the business was significantly impacted by her inability to do so.

 

The employer has a duty to attempt to accommodate the employee, and despite Faris providing several suggestions as to how this could be done, TFD did not offer any meaningful engagement. For these reasons, and having regard to the particular facts of the matter, the LAC found that the dismissal was automatically unfair and awarded Faris the equivalent of twelve months’ compensation for her dismissal.

 

Importance of this case

This case highlights that employers should apply caution when electing to dismiss an employee where such dismissal may give rise to a claim of unfair discrimination. Where an employee discharges the onus of showing that the main reason for his/her dismissal related to an arbitrary ground and thus constituted discrimination the employer will have the onus of showing that while discriminatory, the conduct was nonetheless fair. This onus is not easily discharged.

 

For more information, please contact Jacques Van Wyk at or Andre van Heerden at

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com

 

 

 

 

 

 

 

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

 

POPIA: Protection of Personal Information Act

18 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

22 June 2021 (09:00 - 12:00) Fully Booked)

Interactive Online Course

22 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

23 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

23 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

29 June 2021 (09:00 - 12:00)

Interactive Online Course

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

23 & 24 June 2021 (08:30 - 13:00)

Inter active Online Course

Basic Labour Relations

24 June 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

29 July 2021 (09:00 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

25 June 2021 (09:00 - 12:00)

Interactive Online Course

Employment Equity Committee Training

02 July 2021 (09:00 - 16:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

15 & 16 July 2021 (09:00 - 16:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

16 July 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

22 July 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

28, 29 & 30 July 2021 (08:30 - 16:00)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play