SACTWU & others v Berg River Textiles LC 63/2001, judgment date 4 November 2011

Principle:

A neutral workplace rule or policy which is applied to all employees may be discriminatory if it offends against an individual employee's religious convictions, even where there was no motive and intention to discriminate. To succeed in a claim employees must show that the employer through its enforcement of the work practice / standard concerned interfered with their participation in or practice of their religion or culture, affecting a central tenet of that religion. The employer must be aware of the employee's religious convictions. Once an employee demonstrates that the employer has prima facie discriminated against him or her, the employer must establish either that the rule is an inherent requirement for the job or that the discrimination was fair under the circumstances. The employer must establish that it has taken reasonable steps to accommodate the employee's religious convictions.

Facts:

Members of the SACTWU were dismissed for being absent without leave after having participated in a series of unprotected work stoppages to protest a new shift system. But one employee refused to work on Sundays and he claimed that was the primary cause for his dismissal. He claimed that his dismissal was automatically unfair in terms of s 187(1) (f) of the LRA, as the reason for the dismissal was discrimination on the grounds of his religious beliefs.

The court stressed that it was clear that management knew of Williams's religious convictions and had known for some time. It knew that the Sunday work prohibition was a central tenet of his beliefs so much so that he had in the past turned down promotions and lucrative overtime work in order to go to church, preach and not work on Sundays.

Whilst recognising that it is no longer a requirement that the employee assert his rights, the court found that Williams did so by refusing to work the Sunday shift and in attempting to "work to rule" on another day. He had also lodged a grievance and instructed his union representative to deal with his dispute.

The court found that Williams had established a prima facie case of discrimination against his religious beliefs.

The employer argued that the rule was an inherent requirement of the job and that it had no means of accommodating Williams and his beliefs. Once they had forged a collective agreement, it was to be applied across the board with no differentiation between employees. The union did not dispute that the employer had valid economic reasons for restructuring the shift patterns or that it was in some way barred from implementing those patterns generally. What was submitted was that there was no good reason why Williams, as an individual, could not have been accommodated within what is a relatively large business.

The court said that the employer was obliged to conduct this enquiry about 'accommodation' at the point of the disciplinary hearing, as this was the stage where it was required to determine whether Williams had a valid reason for refusing to obey a workplace rule. On the assumption that he could be accommodated, the employer would then have been required to find that Williams was not guilty of unprotected strike action or the refusal to carry out a lawful instruction the instruction itself being discriminatory.

The Labour Court held that the employer's failure to accommodate Williams by removing his obligation to work on Sundays, and dismissing him as a consequence thereof, rendered his dismissal automatically unfair.

Extract from judgement

38. A few weeks before this matter was heard, the Labour Appeal Court handed down judgment in The Department of Correctional Services & another v POPCRU & others. In the light of the very succinct and useful summary of legal principles set out in that case, the requirements for a successful workplace based religious discrimination claim can be summarised as follows:

38.1 An ostensibly neutral workplace rule or policy which is applied to all employees may be discriminatory if it offends against an individual employee's religious convictions. This approach differs from that expressed in FAWU v Rainbow Chicken Farms where Revelas J found that it was required that there be some form of differentiation between employees.

38.2 It is "incumbent on the [employees] to show that the [employer] through their enforcement of the prohibition on the wearing of dreadlocks interfered with their participation in or practice of their religion or culture".

38.3 The principle involved must be a central tenet of that religion.

38.4 The employer must, of course, be aware of the employee's religious convictions, although the employees do not necessarily have to assert their rights.

38.5 Once an employee demonstrates that his or her employer has prima facie discriminated against him or her, the employer must establish either that the rule is an inherent requirement for the job or that the discrimination was fair under the circumstances.

38.6 In particular, the employer must establish that it has taken reasonable steps to accommodate the employee's religious convictions. Ultimately the principle of proportionality must be applied. Thus an employer may not insist on the employee obeying a workplace rule where that refusal would have little or no consequence to the business.

38.7 The employer's motive and intention are not relevant to the enquiry and it is thus not relevant whether the employer acted with benign motives.

Legal principles applied to Williams

39. It is clear that the application of the new shift system (which constituted a workplace rule) ran contrary to Williams's religious beliefs. He testified passionately that he became a reborn Christian 20 years ago; that it is so central to his belief system that he is a lay preacher in his church, the Apostolic Faith Mission; and that the Sunday work prohibition is a central tenet of those beliefs and is considered of utmost importance to him.

40. Whilst it is clear that the workplace rule applied equally to all and that there was no differentiation between employees, the test is now whether the workplace rule discriminated against the beliefs of any single employee, irrespective of how neutral the rule was. The point is simply this: Williams was the only employee who chose to register a complaint premised on his religious beliefs.

41. It is clear that the respondent's management knew of Williams's religious convictions and had known for some time. More particularly, the respondent knew that the Sunday work prohibition was a central tenet of his beliefs so much so that he had in the past turned down promotions and lucrative overtime work in order to go to church, preach and not work on Sundays.

42. Whilst it is no longer a requirement that the employee assert his rights, it is clear that Williams did so by refusing to work the Sunday shift and in attempting to "work to rule" on 15 June 2010. He also lodged a grievance and instructed his union representative to deal with his dispute.

43. It is thus clear that Williams established a prima facie case of discrimination against his religious beliefs. If upheld, that discrimination, which resulted in Williams's dismissal, would constitute an automatically unfair dismissal for the purposes of the LRA. It would also follow that in as much as compliance was an instruction, it was neither lawful nor reasonable.

44. The respondent argued that the rule was an inherent requirement of the job and that it had no means of accommodating the second applicant and his beliefs. Once they had forged a collective agreement, it was to be applied across the board with no differentiation between employees.

45. The applicants do not dispute that the respondent had valid economic reasons for restructuring the shift patterns or that it was in some way barred from implementing those patterns generally. What was submitted is that there is no good reason why Williams, as an individual, could not have been accommodated within what is a relatively large business.

46. The respondent was obliged to conduct this enquiry at the point of the disciplinary hearing as this was the stage where it was required to determine whether Williams had a valid reason for refusing to obey a workplace rule. On the assumption that he could be accommodated, the respondent was required to find that he was not guilty of unprotected strike action or the refusal to carry out a lawful instruction the instruction itself being discriminatory.

47. It would of course have been preferable had the respondent simply elected not to prosecute second applicant to begin with. Whilst there was no grievance process "alive" in a technical sense while the union representative was trying to resolve Williams' concerns, it would have been clear to the respondent that he was not going to comply with the Sunday work demand. It was thus inevitable that his dispute had to be resolved one way or the other.

48. Against the clear guidelines formulated by the Labour Appeal Court in POPCRU, the failure by the respondent to accommodate Williams by removing his obligation to work on Sundays and dismissing him as a consequence thereof rendered his dismissal automatically unfair.