Dismissal as a fair sanction based on cultural and religious beliefs : a comparative study

Abstract

The rights to freedom of religion and cultural expression are some of the most important rights a person has, and both are entrenched in the Bill of Rights. Since the expression of these rights is interwoven with a person’s day to day living, they also make their way into the workplace. The ability to exercise these rights enables a person to fulfil a spiritual need as well as the need for a sense of belonging. These rights do however have the ability to cause friction in the workplace, such as the wearing of a headscarf, dreadlocks or a cross, some of which might be against the uniform policy of the workplace. They also have the potential to be on a collision course with certain rights of the employer. For this reason there should be a clear understanding with regard to the extent to which protection can be enjoyed under these rights. More importantly, it has to be determined when an employer will be within his rights to consider and effect dismissal based on cultural and religious reasons. Dismissal may not take place on any of the listed grounds as stipulated by section 187 (1)(f) of the Labour Relations Act, nor discrimination on any grounds contained in section 6 of the Employment Equity Act. Religion and culture are both included in the aforementioned sections which implies any dismissal or discrimination on these grounds is prohibited. It is further incumbent upon the employer to provide reasonable accommodation towards the employee in order for the latter to exercise the right to freedom of religion and culture in the workplace. However, the employer cannot be expected to accommodate the employee beyond the point of reasonableness. Should the employer reach the point where his/her interest would suffer a loss, he/she need not accommodate the employee any further. Discrimination and/or dismissal at this point would thus be justified, even if it is based on religious or cultural grounds. An inherent requirement of the job may further justify ostensible discrimination with regard to a particular job. Courts have had ample opportunity to express themselves on the issues mentioned above. Recent case law seems to be slightly more generous towards the employee than what used to be the case in erstwhile decisions; this can be attributed to the fact that we are now living in a constitutional dispensation. The operational requirements of the employer may however still be such that the rights of the employee with regard to culture and religion have to give way. Guidance can also be sought from Canadian jurisprudence, especially because of the similar values of South African and Canadian constitutions. The Canadians have developed the concept of undue hardship which, to a great extent, seems to be successful in striking a balance between the rights of the employer and those of the employee. Under this concept issues such as financial cost, interchangeability of workforce, moral of other employees and health and safety issues are key factors for such a balance.