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Legal Talk
Legal Talk
Date: 2019-04-19
Refusal To Obey An Instruction At Work Based On Religious Grounds
Can an employee refuse to perform a task at work using the argument that it would be against his or her religious belief and practice to do so Can the employer terminate the services of its employee, under these circumstances using insubordination or incapacity as the reasons for termination of the employee services
What about the employer's right of expectation of its employee to deliver particular services to the employer, not to mention the operational requirements of the employer business. These were the issues in the case of TDF Network Africa (Pty) Ltd v Faris (2018).
The employee who was a Seventh Day Adventist member, refused to work on Saturdays saying that it went against her religious practice. Her employer on the other hand insisted that it was part of her job to do stocktake on Saturdays and claimed that that this function was an important operational requirement of its business.
The employee said he informed her employer at her job interview that she would not to be able to work on Saturdays. The employer however denied this. Because of the employee's refusal to work on Saturdays, the employer then instituted disciplinary proceedings against her, using incapacity as it's reason for the enquiry and eventually dismissed her based on incapacity.
The employee took the matter to the Labour Court claiming an automatic unfair dismissal. The Labour Court found that the employer had discriminated against her for complying with and practising the tenets of her religion and awarded her 12 months compensation.
The employer then took the matter on appeal to the Labour Appeal Court. The Labour Appeal Court held that the requirement to perform a task must be rationally connected to the performance of the job.
It said the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty. The court found that her presence was not reasonably necessary for the accomplishment of the main purpose.
The Labour Appeal Court was scathing of the conduct of the employer and said that a practice which penalises an employee for practising her religion is regarded as an invasion of her dignity in that it supposes that her religion is not worthy of protection or respect.
The Court also said it was "a form of intolerant compulsion to yield to an instruction at odds with sincerely held beliefs on pain of losing employment. The employee is forced to make an unenviable choice between conscience and livelihood".
The court said that the employer has a duty to reasonably accommodate an employee's religious freedom, unless it is impossible to do so without causing itself undue hardship. It is not enough that it may have a legitimate commercial rationale. The Labour Appeal Court confirmed the award of 12 months' compensation.
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