Page 77 - Q&A 2019/2020

Employers have to be tolerant of religious
practices of employees

May 2019

“My employer is requiring me to work over weekends as part of my new
manager responsibilities. Although I have no problem with working extra hours,
the work often clashes with my religious observances over the weekend. I’ve
discussed this with my employer, but my employer is threatening to take my
manager position away if I don’t work continuously over the weekend. What
can I do?”

Freedom of religion is a fundamental human right. This right extends to the
workplace and may only be limited in exceptional circumstances. There must
accordingly always be a balance between the rights of the employee as well
as the workplace requirements of the employer.

The Employment Equity Act, 1998 (“EEA”) provides further support to this
fundamental right by expressly prohibiting unfair discrimination on the basis
of religion and requiring employers to accommodate employees and their
religious practices.
Our labour courts also require employers to accommodate the religion and
practices of their employees. In a recent decision of the Labour Appeal Court, it
was held that before an employer considers sanctions due to non-compliance
with workplace rules due to religious grounds, it must be considered if the
Labour sanctions are justifiable. To do this, consideration must be given to the level
of burden which would be placed on the operations of the employer if
accommodated; the nature and importance of the specific workplace rule;
how closely the employee’s non-compliance of the workplace rule is related to
their religious beliefs; and whether any other means exist in terms of which the
employee may have been reasonably accommodated.

Should an employer, taking into account the above considerations, be found to
have unfairly discriminated against an employee on the basis of their religion,
they may be liable for a fine, payment of compensation, damages, or any other
suitable remedy in furtherance of the objectives of the EEA.
It is important to understand that freedom of religion is protected and employer’s
will have to balance an employee’s right to religion against their business needs
and must reasonably accommodate an employee’s religious freedom unless it
is impossible to do so without causing itself undue hardship.
Freedom of religion however is not an absolute right and the merits of each
situation will have to be considered. If discussions with your employer to
accommodate your beliefs don’t succeed it may therefore be advisable to seek
the help of an attorney or labour specialist to help you correctly address the
matter with the employer.

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