Are religious rights a confined absolute right
Case:
- Labour Appeal Court (LAC) in Sun International Management Limited v Sayiti (JA13/23) [2024] ZALCJHB 411 (21 October 2024).
Background:
On 16 March 2015, Mr. Lucky Thandikaya Sayiti (“the employee”) was hired by Sun International Management Limited (“the employer”) to serve as the marketing manager for the Employers East Africa and Southern Development Community (SADC) division. The Employer is a multinational corporation operating in the hospitality sector and offers its services throughout Africa. The terms and circumstances of the Employees employment contract included, amongst other things, that he would work regular weekday hours from 8h30 to 17h00. In addition, and in light of the Employers business practices, the employment contract required the Employee to occasionally work long hours without receiving extra pay. A flexibility clause in the Employers employment contract likewise required all employees to operate within their individual skill and capability ranges for the Employer to fully use all its resources.
As a result, all employees were required to participate in training and were expected to be open to switching between departments and jobs within the organisation based on operational requirements. When the situation called for it, the Employer had the authority and discretion to move the Employee to any department. Any refusal by the Employee to comply with this flexibility clause would empower the Employer to follow its disciplinary procedures.
The Employee never raised any objections to any of the terms of employment when he first started working for the Employer, however two months after he started working, the Employee advised the Employer that he was a Seventh Adventist, which prevented him from travelling or going to activities on the Sabbath, which is from sunset Friday to sunset Saturday.
The employer attempted to accommodate the Employee by excusing him from work during the Sabbath for a period of about 16 months.
The Employer then had no alternative but to commence an incapacity inquiry against the Employee in July of 2016. The inquiry’s conclusion was that, given the demands of the position, the Employee was unable to carry out the duties of a Marketing Manager Additionally, the Employer then tried to further accommodate the Employee by offering him a position as a sales coordinator which would cater the Employee’s religious times of practice (although at a reduction of the Employees current salary), to which the Employee rejected. The Employees employment contract was subsequently terminated by the Employer on 11 September 2016.
The Employee referred his dismissal to the Commission Conciliation Mediation and Arbitration (“the CCMA”) to contest such dismissal, but the Corn/Arb process did not yield any favourable outcome for the Employee. He then took the matter to the Labour Court (LC), which, as the court of first instance, ruled that the Employee had been unfairly discriminated against regarding his religious practices under section 6 of the Employment Equity Act (EEA) and that his dismissal was automatically unfair under section 187(1)(f) of the Labour Relations Act (LRA). The respondent’s reinstatement with retroactive effect was thus mandated by the LC. The matter was then subsequently taken on appeal, wherein the Labour Appeal Court (LAC) found that the Employees termination was not automatically unfair because the obligation for weekend work was an inherent requirement of his job. Furthermore, the LAC stated that the Employee applied for a job in a position that clearly demanded availability for weekend work, but he neglected to mention the constraints imposed by his religious convictions before being hired.
Accordingly, the LAC was of the view that the Employer had made a good faith effort to respect the Employees religious convictions. For 16 months, the employer permitted the Employee to skip weekends. Although it came with a lower income, the employee further turned down the Employer’s offer of a different role as a sales coordinator, which did not involve weekend work.
These initiatives showed the Employer’s dedication to striking a balance between the Employees religious beliefs and the needs of the company.
In light of this, the LAC held that the Employees dismissal was as result of the inherent requirements of a particular job and held that it did not constitute an automatically unfair dismissal.
Key learnings:
Religious rights are not confined absolute right. The inherent requirements of the job must be considered.
