FAWU & others v Rainbow Chickens (2000) 21 ILJ 615 (LC)
- An employer's refusal to permit an employee to take time off to celebrate his or her religion may constitute unfair discrimination where it is established that the employer permitted only some employees to take a day off to do so, whereas others were not permitted. But it may not be unfair where the granting of permission has the result that no work can be done because of the religious holiday of one or more employees.
- Generally, in cases where there has been no prior instance of absenteeism without leave, the employer is not entitled to dismiss an employee for absence from work, particularly when there is some explanation for the absence. However, where the employee's absence is coupled with some element of insubordination, a dismissal may be justified.
All butchers were employed specifically because they were Muslim – so that all chickens could be slaughtered according to Halaal standards. All other workers in the factory were dependent on the slaughtering by the butchers – if the butchers didn’t work, the whole operation closed down. All the butchers refused to work on the Muslim religious holiday, Eid ul Fitr. The collective agreement between the company and the union entitled workers to the gazetted public holidays only. Eid was not such a holiday. If all the butchers had been given the day off on Eid, no work could have been done on Eid, and all the company's employees would have had to take the day off and be paid irrespective of whether they belonged to the Islamic faith or not. The butchers had been specifically employed because they were Muslims, and it was an operational requirement that they worked on a day which was not a public holiday.
After their dismissal, they alleged unfair discrimination. The court found that the employees had not been discriminated against unfairly as envisaged by s 187. All the company's employees were required to work on Eid, which was not a public holiday. Notwithstanding the court’s finding that there had been no unfair discrimination and that their dismissal was not automatically unfair, the court did find that the sanction of dismissal was too harsh and accordingly substantively unfair. The court was critical of the employer for having offered the employees the choice of dismissal with an appeal or a final warning with no appeal. The employees had declined to chose the final warning / no appeal option as they apparently felt that if they did so, they could not raise the matter again. That would be seen as forsaking the principle which they stood for.
Extract from the judgment:
 Section 187(1) (f) of the Act provides that a dismissal is automatically unfair if the reason for the dismissal is - '[t]hat the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief'.
 The individual applicants were not discriminated against unfairly, as envisaged by s 187 of the Act. All employees of the respondent were required to work on Eid, which is not a public holiday. The individual applicants were specifically employed because they were Muslims. The respondent wishes to sell only chickens that are slaughtered in accordance with the Halaal standard. In the past, all the individual applicants worked on Eid, even though they may have resented to do so, but they also never referred their dispute to the CCMA. The applicants' legal representative, Mr Conradie , referred me to American cases where it was held that an employer's refusal to permit an employee to celebrate his or her religion constituted unfair discrimination. I would agree with the aforesaid proposition, where it was established that a particular employer permitted only some employees to take a day off to celebrate their religion, whereas other were not permitted, provided that the granting of such permission does not have the result that no work can be done because of the religious holiday of one or more employees.
 In this case, Christmas (a public holiday) is not a working day for any employee of the respondent. If all the butchers are given the day off on Eid, no work could be done on Eid, and all the respondent's employees would have to take that day off and be paid, irrespective of whether they belong to the Islamic faith or not. This, of course, is the case as well, insofar as Christmas is concerned. Christmas, however, is a public holiday, and Eid is not. The individual applicants were specifically employed because they are Muslims. It was an operational requirement. Consequently, I do not believe that the respondent's conduct, by not consenting to giving the butchers the day off on Eid, amounts to unfair discrimination as envisaged by s 187(1) (f) of the Act.
 The respondent argued that the conduct of the individual applicants amounted to collective industrial action, in other words, a strike as envisaged by s 213 of the Act. If the conduct of the individual applicants indeed amounted to a strike, such a strike would have been unprotected, because the procedures prescribed by the Act were not followed. If this were the case, their conduct could perhaps be regarded in a more serious light than ordinary absenteeism without leave.
 Section 213 of the Act describes a strike as follows:
'The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee and every reference to '' work ' includes overtime work, whether it is voluntary or compulsory.' (Emphasis added.)
 I am of the view that even though their actions were collective, the individual applicants did not conduct themselves as they did to remedy a grievance or to resolve a dispute. They made no demand. The respondent was also not placed under the type of pressure which, for instance, would accompany a wage demand prior to a strike. The respondent was also not placed in a position where, if it acceded to a demand of the individual applicants, that they would resume work. That would be the case in a strike. A strike would then be called off if the demand was met or the grievance was remedied or the dispute was resolved. This was not the case in this matter. The individual applicants simply refused to work on Eid because of their religious beliefs. Their conduct was similar to the conduct of any employee who decided to be absent from work for whatever reason. The fact that the individual applicants gave prior notice of their absenteeism makes no difference.
 The next question is whether or not their conduct warranted dismissal.
 Generally, in cases where there has been no prior instance of absenteeism without leave, the employer is not entitled to dismiss an employee for absence from work, particularly when there is some explanation for the absence. However, where the employee's absence is coupled with some element of insubordination, a dismissal would be justified. In Mkele v SA Breweries Ltd (1991) 12 ILJ 900 (IC) , the Industrial Court upheld a dismissal where employees had been expressly advised to report for duty in accordance with specific shift-working arrangements. In Frasers Ltd v CCAWUSA (1987) ARB 8.17.5, the arbitrator upheld a dismissal where an official attended a union conference when he had been refused leave to do so. The Labour Appeal Court, in Agbro (Pty) Ltd v Mzimkhulu & others (1993) 2 LCD 23 (LAC) , upheld the dismissal of security guards who were absent from work during a stay-away, when an agreement between the employer and the union provided that they would not participate in stay-aways unless management had been informed and replacements arranged. See also C Bennett A Guide to the SA Law of Unfair Dismissals (Lexicon 1992) at 30.
 The intransigence of the individual applicants, and the fact that they gave the respondent very short notice of their absence on Eid, in my view, was indicative of insubordination on their part. Even so, I do not believe that dismissal was the appropriate sanction. Firstly, the fact that the employer gave the employees a choice between dismissal and a final warning (without an appeal) was ambiguous and unfair in the circumstances. It cannot be argued that the individual applicants had only themselves to blame for their predicament because they chose dismissal (with an appeal). This was not a matter where the employees took the day off to watch a soccer game or for any other frivolous reason. They stood up for a principle, albeit in the face of breaching their contracts of employment. If I understood Mr Moosa correctly, his explanation for not accepting the final warning was because the individual applicants felt that if they accept a final warning without an appeal, they could not raise the matter again. That would be seen as forsaking the principle which they stood for.
 It was argued on behalf of the respondent, by Mr Maeso , that the chairperson of the enquiry was merely 'throwing out a lifeboat' to the individual applicants to save themselves from dismissal. That may be so, but in my view, if the respondent wanted to dismiss the individual applicants it should have done so itself, and not have left it to the individual applicants to dismiss themselves. Mr Moosa also conceded under cross-examination that the individual applicants did not appreciate that they would in fact be dismissed. I therefore gained the b impression that the employment relationship between the respondent and the individual applicants was not destroyed by this incident and that the dispute between the respondent and the individual applicants was one which was capable of being resolved through negotiation.
 The applicants did not refer their dispute for conciliation, which is something they should have done. Instead, they raised their stance very shortly before they absented themselves, thereby inconveniencing the respondent and challenging its authority. It is for this reason that I adopted the approach that, although the individual applicants are entitled to reinstatement, such reinstatement should not be with retrospective effect.