| dc.description.abstract | South Africa is a country reflective of a society rich in cultural and ethnic diversity. Locally and internationally the term "rainbow nation" is used to describe South Africa. This diversity that once separated many due to political ideologies and policies is now used as a collective notion. Under the Constitution of the Republic of South Africa, 1996 (the Constitution) we are enjoined to be united in our diversity so as to establish a society based on democratic values, social justice and fundamental human rights. Tolerance is essential for purposes of embracing diversity. The realisation of social justice is made possible through a commitment to transformative constitutionalism and ubuntu.
The aforesaid cultural diversity of South African society also translates into a diversity of religions. This is as much apparent in society as it is in the workplace. South Africa can be regarded as a secular neutral state on account of the lack of intervention by government in private religious affairs and/or activities either on the part of individuals or religious organisations. However, the manifestation of religious freedoms on the part of an employee in the workplace can conflict with the inherent requirements of the job (IROJ). It may even conflict with the operational requirements of an employer’s business. Religious organisations may insist that the IROJ demand employees share their religious beliefs, or exclude applicants from employment. The aforesaid instances give rise to claims of unfair discrimination on the basis of religion.
These claims are often fraught with complexities since they arise from competing fundamental rights. On the one hand, the right which the employee has to freely express his or her religious freedom in the workplace; on the other, the right which an employer has to conduct business in accordance with the IROJ which may limit, restrict or even preclude an employee from manifesting religious freedom in the workplace. The tensions which arise from a conflict between the above fundamental rights in the workplace should be effectively resolved through mutual dialogue between the employee and employer as role-players. However, it is more often intensified on account of the inherent imbalance in the bargaining power between the parties to the employment relationship. This renders constructive dialogue difficult – if not elusive. On account of this fact, there is a need for unfair discrimination on grounds of religion to be addressed in terms of an effective legislative and constitutional framework.
The Bill of Rights protects a variety of fundamental human rights. The right to, inter alia, equality, human dignity, freedom of expression and association, freedom of religion and fair labour practices are expressly recognised as basic entitlements. Whilst these rights are accorded to everyone, they are not absolute. They are all subject to a general limitation of rights clause which provides for a reasonable and justifiable limitation of rights in an open and democratic society based on human dignity, equality and freedom. The manner in which a fundamental right may be limited is subject to principles of rationality, reasonableness and proportionality. These considerations have significant roles to play in assessing the extent to which discrimination on the basis of religion can be said to (un)fair.
The legislation addressing religious unfair discrimination in the workplace is currently regulated by the Employment Equity Act 55 of 1998 (the EEA) and the Labour Relations Act 66 of 1995 (the LRA). Common to both these Acts is the fact that workplace discrimination by an employer on the basis of religion may be fair if it is based on the IROJ. Any advantage afforded a claimant in terms of pursuing an unfair discrimination claim on an alleged arbitrary ground in terms of the EEA is significantly diminished by the onerous burden of proof such claim attracts. The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) is to address unfair discrimination in the private and public spheres of life, other than workplaces. PEPUDA is, however, relevant to religious unfair discrimination in the workplace on account of its generous and expansive definition of whether discrimination is (un)fair.
All legislation is required to be interpreted to in a way that gives effect to the underlying values and principles of the Constitution. This requires that such legislation and the text of the Constitution be interpreted "generously” and "purposefully" in a manner that gives impetus to transforming our society. On account of the manner in which the expression of religious freedom manifests itself in the workplace, unfair discrimination claims often present themselves more frequently in the form of indirect as opposed to direct forms of discrimination.
When adjudication conflicting fundamental rights, giving effect to substantive, as opposed to formal. equality simply means that it is impossible to accord both competing fundamental rights equal treatment. What is required instead, is that the competing rights will be treated in accordance with their respective merits, regard being had to the circumstances of each case. An overarching means of determining the fairness of whether discrimination on the basis of religion is fair is to use what our courts have referred to as a "nuanced context-sensitive approach. Thus, there appears to be a general tendency on the part of our courts to no longer simply adjudicate religious unfair discrimination workplace disputes in terms of the so-called Harksen v Lane test, but to rather have regard to a host of factors thereby giving added impetus to substantive equality.
Canada serves as an appropriate international comparator. Like South Africa, Canadian society is multicultural in nature and diversely reflective of many religions. It too has a constitution based on human rights, namely the Canadian Charter (the Charter). Due to the Charter’s limited vertical application, unfair discrimination on the basis of religion is addressed and regulated by the Canadian human rights framework which consists of various legislative measures operating at federal level. An analysis of Canadian jurisprudence on religious unfair discrimination in the workplace is advantageous on account of the emphasis it places on the need for considering the overall issue of substantive equality as opposed to the normative confines of nuances between direct and indirect (adverse) discrimination. Moreover, there is also emphasis on the need for mutual accommodation, as opposed to mere reasonable accommodation when considering the issue of (un)fairness. The findings of this thesis are that South African labour law currently does address religious unfair discrimination in the workplace. This is done in the main through the legislative and constitutional framework. However, there is room for improvement. It is recommended that the current restrictive wording of the EEA and LRA be amended to make provision for a wider and broader meaning of (un)fair discrimination. A meaning that permits the adjudicator to take into account multiple factors currently contained in section 14 of PEPUDA is encouraged. More specifically, an employer’s defence should not be limited to the mere IROJ, but should be permitted to extend to include operational requirements. In addition, allowance should be made for instances where so-called negative and positive duties are imposed upon employers. A negative duty is where an employer has no knowledge of the employee’s religious belief, as a result of which he cannot be required to act in any particular manner. A positive duty is where knowledge on the part of the employer requires particular steps, the fairness of which are relative to the circumstances. It is further recommended that a Code of Good Practice Concerning Religious Discrimination in the Workplace be incorporated into the EEC. The rationale for this is to increase awareness and education in the workplace with a view to establishing and encouraging appropriate dispute resolution mechanism procedures in relation to claims of religious unfair discrimination.
In addition, through the "nuanced context-sensitive" approach adopted by our courts greater effect should be given to the notion of mutual accommodation since this advances the notion of substantive equality and recognises the important role to be played by both employer and employee in seeking a solution to a problem in the workplace | en_US |
