Tuesday, April 9, 2019 – 11:07
Companies must ensure their human resource (HR) policies and procedures reflect South Africa’s multi-cultural society, especially when it comes to the religious beliefs of their employees, declares Nicol Myburgh, Head of the Human Resource Business Unit at CRS Technologies.
“This is very important not only as a moral imperative or to comply with labour legislation, but because religious freedom and protection is a constitutional right. From a labour perspective, employees are protected under the Employment Equity Act, which states that no person may unfairly discriminate against an employee in any employment policy or practice on several grounds, including religion.”
“Companies must be careful not to unfairly discriminate against any employee on the grounds of their religion,” Myburgh continues. “Even if this happens accidentally, such as by enforcing a dress code or denying leave on a religious holiday, the employer could be found to be in breach of the Constitution.
Consequently, it is imperative that HR policies and procedures make provision for their employees’ religious beliefs and practices. Additionally, during the development of an Employment Equity plan, these policies and procedures must be tested for potential barriers to equity and the plan must provide a timeframe for the correction of these barriers.
“Organisations face severe financial risk if they discriminate unfairly based on religion,” says Myburgh.
In one case, an employee was dismissed for refusing to work on a Saturday (as it was considered the Holy Sabbath) when the company scheduled stock taking on the day. The Labour Appeal Court found that the dismissal was automatically unfair and awarded the employee the equivalent of 12 months’ compensation for the dismissal.
At another organisation, employees were dismissed for not adhering to the company dress code by wearing dreadlocks. The argument was that some of them wore dreadlocks as part of their Rastafarian religion, while others wore them as a requirement of their Xhosa culture. The Supreme Court of Appeal held that the employees’ dismissals were automatically unfair on the grounds of discrimination relating to gender, religion, and culture.
“In other labour disputes, the compensation awarded is capped at 12 months, but when it comes to automatically unfair dismissal this goes up to 24 months if awarded by the CCMA.”
“If the case goes to the Labour Court, there is no prescribed limit,” Myburgh adds.
There are a few considerations to keep in mind when it comes to dealing with religious leave so that it does not negatively impact those employees who are not religious.
An employer should ask the following questions:
- Is the dominant reason for leave the employee’s religion?
- Is it an inherent requirement of the job to work on that specific day?
- Is the required task rationally connected to the performance of the job and reasonably necessary to the accomplishment of that purpose?
- Would it be impossible to accommodate the employee without imposing undue hardship on the business?
“Through all of this, companies must be aware of the human element in the formulation of their policies,” says Myburgh.
“Policies that are too rigid or inflexible are not very effective in society today. They need to be of such a nature that they can accommodate for individual circumstances, while still being applied fairly and consistently.”