TFD Network Africa (Pty) Ltd v Faris (CA 4/17)  ZALAC 30 (5 November 2018)
Where an employee, for religious reasons, refuses to perform part of her/his contractual duties, the employer bears the burden of proving that it could not accommodate the employee. The employer has a duty to reasonably accommodate an employee's religious freedom unless it is impossible to do so without causing itself undue hardship. It is not enough that it may have a legitimate commercial rationale that it seeks to protect.
The employer, TFD Network Africa, conducts business as a logistics and transport service provider and offers a warehousing and distribution service. The warehouse normally holds substantial amounts of customer stock and stock-taking is required over weekends on a monthly basis.
The dismissal of the employee arose from her refusal to work overtime on Saturdays to do stock-taking, on account of her being a Seventh Day Adventist, a religion in which Saturday, the seventh day, is the holy Sabbath. Although the employee claimed that she made disclosure of her faith, TFD maintained that during the interview she was told that she would be required to perform weekend work, to which she indicated she had no problem. TFD claimed it would not have employed her if it had been aware that she could not work on weekends, as it was an operational requirement of the job that she participate in stock-taking on Saturdays. The employee signed a written contract of employment in which she agreed to perform 'such overtime duties as may be reasonably required of you from time to time, provided this does not exceed the limitations laid down in relevant legislation.'
After missing several monthly stock-takes, incapacity proceedings were initiated and after a hearing the employee was dismissed for incapacity. She declared a dispute concerning "an alleged unfair discrimination based on religious grounds". The Labour Court held that her dismissal was procedurally and substantively unfair, automatically unfair and that she was unfairly discriminated against by TFD on the basis of her religion and belief.
On appeal, the LAC upheld the LC's decision and found that TFD did not reasonably accommodate the employee. TFD failed to discharge the evidentiary burden necessary to sustain the defences of fair discrimination under section 187(2)(a) of the LRA, with the result that the dismissal was automatically unfair as contemplated in section 187(1)(f) of the LRA. There was no evidence that the employer suffered any hardship at all by her being absent. She did not attend stock takes for 12 months and there is no indication that her absence impacted on the TFD's ability to get the stock takes done. The LAC found that her presence was not reasonably necessary for the accomplishment of the operational requirements.
Extract from the judgment:
 Section 187(1)(f) of the LRA renders a dismissal automatically unfair if:
'... the reason for the dismissal is that 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, political opinion, culture, language, marital status or family responsibility.' The automatically unfair dismissal claim, in this case, is founded on Faris' religion. She carries the evidentiary burden to show that her religion was the true or real or dominant reason for her dismissal and that a sufficient nexus exists between her dismissal and her religion. TFD does not dispute that Faris is an Adventist, but has disputed whether it is one of the tenets of the religion that Adventists may not work at all on the Sabbath. It pertinently required this tenet of the religion to be proved at trial, and in the pre-trial minute called on Faris to provide expert evidence in this regard.
 In SACWU and Others v Afrox Ltd, when dealing with an automatic unfair dismissal in terms of section 187(1)(a) of the LRA - dismissal for participation in a protected strike - this court said the following:
'The enquiry into the reason for the dismissal is an objective one, where the employer's motive for the dismissal will merely be one of a number of factors to be considered. This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not also be utilized here ... The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the 'main' or 'dominant', or 'proximate', or 'most likely' cause of the dismissal. There are no hard and fast rules to determine the question of legal causation.' Section 187 of the LRA imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove the contrary by producing evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 for constituting an automatically unfair dismissal.
 TFD submits that the most dominant reason for the dismissal of the respondent was not her religion, but her refusal to work on Saturdays. It has always required all its managers, no matter who they were or what their background was, to attend stock takes once a month from Friday to Saturday. Moreover, the contract of employment specifically makes provision for such overtime work, which Faris agreed to when commencing employment, despite her religion. Thus, it argued, religion was not the sine qua non. The refusal to do the stock take was the dominant reason for the dismissal, and not Faris' personal convictions that underlay it. Her religion, therefore, TFD contends, played no role in the motivation to dismiss her.
 TFD also argued that Faris failed to prove that the tenets of her religion absolutely forbid work on Saturdays. As mentioned, TFD specifically placed this in dispute. No expert evidence was tendered. The mere ipse dixit of Faris, TFD submitted, was insufficient to prove the tenets of her religion. At the very least, it was necessary to call a pastor of the church to establish that it was impossible for her to obtain a special dispensation to work on a Saturday once a month. She accordingly failed to prove that her religion per se prohibited her from working on a Saturday. Her personal views of what her religion required of her are insufficient.
 Faris conceded in her testimony that exceptions are made for doctors or nurses or persons doing essential service work. However, she made it clear that stock taking did not fall into the exceptional humanitarian category. Her decision not to work on a Saturday was one of faith and conscience-based not only upon the tenets of the Adventist faith but also her subjective understanding of the tenets. She elected as a matter of conscience not to seek a special dispensation from her church as she considered it inappropriate to do so.
 TFD's contentions are not sustainable. Firstly, the dismissal would not have occurred if Faris had not been an Adventist. Had she not been an Adventist she would have willingly worked on a Saturday. The evidence suggests that her work performance was exemplary in all other respects. It is disingenuous to argue that her non-availability on Saturdays was the reason for her dismissal without having regard to the underlying reason for her non-availability. But for her religion, she could have worked on a Saturday and would not have been dismissed. Her religion was the dominant and proximate reason for her dismissal.
 The tenets of the Adventist religion are notorious or at least readily ascertainable. They can be obtained from sources of indisputable authority. And it is permissible for a court tasked by the LRA to do equity and advance social justice in expeditious dispute resolution, to take judicial notice of notorious facts of a sociological or religious nature by consulting works of reference. According to the website Christianity.com, Adventists may not partake of secular labour on Saturdays, with exceptions made for emergency humanitarian work. It hardly needs saying that stock taking in pursuit of profit does not fit the mould of the category of exception.
 In conclusion then, there is no doubt that Faris was dismissed and discriminated against for complying with and practising the tenets of her religion. The decisive enquiry in this appeal is whether the discrimination is fair, rationally connected to a legitimate purpose and does not unduly impair or impact on Faris' dignity. In the context of the LRA, the fairness enquiry coincides in most respects with the determination of whether the discriminatory job requirement falls within the exemption in section 187(2)(a) of the LRA, which provides specifically that, despite section 187(1)(f), a dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the particular job. Relevant considerations in regard to fairness and the inherent requirements of the job include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which rights or interests of the victim of the discrimination have been affected, whether the discrimination has impaired the human dignity of the victim, and whether less restrictive means are available to achieve the purpose of the discrimination.
 TFD submits that it is an inherent requirement of the job to require a manager to do a stock take once a month over a weekend, where a stock take is essential to its operations. In Department of Correctional Services and Another v Police and Prisons Civil Rights Union and Others, the SCA stated:
'An inherent requirement of a job has been interpreted to mean "'a permanent attribute or quality forming an . . . essential element . . . and an indispensable attribute which must relate in an inescapable way to the performing of a job."' The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.
 However, even if that is shown, the enquiry does not end there. In addition, the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty. In SA Clothing and Textile Workers Union and Others v Berg River Textiles - A Division of Seardel Group Trading (Pty), the Labour Court correctly and succinctly put it as follows:
'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.' TFD maintains that the weekend stock take once a month achieved a proper, if not critical, operational purpose at its business. TFD carries stock of substantial value in a warehouse and obviously must conduct regular stock takes. A full stock takes over a weekend once a month, when normal weekly business operations have ceased, is necessary for the efficient running of the business. The stock take is designed also to provide an opportunity to exercise supervision and control over the personnel normally working in the warehouse. It, accordingly, requires managerial involvement. It is also intended to provide managerial training. Stock takes once a month over a weekend are thus an essential component of a manager's job.
 TFD contends further that the limitation of Faris's rights in achieving these legitimate commercial purposes was minimal. Faris was free to exercise her religious beliefs in all other respects at all other times except for the 12 days of the year when she could be reasonably expected to compromise by getting special dispensation from her church, which would not be disproportionately onerous. In its view, her dignity and her position in society were not unjustifiably affected.
 Moreover, TFD contended there was a danger of opening the floodgates to other employees who might similarly seek exemption from Saturday work for family or other reasons.
 TFD relied on the decision of the Labour Court in Food and Allied Workers Union and Others v Rainbow Chicken Farms (Rainbow Chickens), concerning Muslims who refused to work on Eid...
 Although it is undeniable that the overtime requirement pursued a legitimate commercial rationale adopted in a genuine belief that it was necessary for the fulfilment of a legitimate work-related purpose, TFD's justification ultimately does not withstand scrutiny. In particular, I am not persuaded that it was impossible to achieve the object of the stock takes without reasonably accommodating Faris. Her situation was very different to that of the Muslim employees in the Rainbow Chickens case. In that case, had the affected employees all been allowed to take leave, the factory would have closed and the employer would have suffered undue hardship. By contrast, there is no evidence that the employer suffered any hardship at all by Faris being absent. She did not attend stock takes for 12 months and there is no indication at all that her absence impacted on the TFD's ability to get the stock takes done. Her presence was not reasonably necessary for the accomplishment of the main purpose.
 The real rationale for insisting on Faris' attendance at stock takes appears most clearly from Smith's testimony. He had a rigid policy from which he did not want to depart by making an exception. If he accommodated Faris, he feared he would be expected to accommodate others. But his apprehension is not valid - the only persons likely to require accommodation on the grounds of observing the Sabbath on a Saturday would be Adventists and Orthodox Jews. The evidence reveals that Faris was the only employee at TFD who required accommodation on such grounds. The floodgates argument, in the circumstances of this case, is misplaced, unfounded and lacking in a rational basis.
 Likewise, the submission that the requirement did not impact upon the dignity of Faris fails to comprehend the intrinsic link between the tolerant observance of religious freedom and dignity. These values are not mutually exclusive but enhance and reinforce each other. As stated earlier, some adherents to a religious creed observe a certain practice because they feel it is central to their identity to do so. TFD seems indifferent to or not to understand that important precept of our constitutional dispensation. Without question, an employment practice that penalises an employee for practising her religion is a palpable invasion of her dignity in that it supposes that her religion is not worthy of protection or respect. It is a form of intolerant compulsion to yield to an instruction at odds with sincerely held beliefs on pain of losing employment. The employee is forced to make an unenviable choice between conscience and livelihood. In such a situation, the dictates of fairness and our constitutional values oblige the employer to exert considerable effort in seeking reasonable accommodation.
 The only possible legitimate rationale justifying the non-accommodation of Faris is that her attendance was an essential part of her managerial training. She needed to gain hands-on experience in the stock take process in order to work as a manager. The question then is whether it was not possible to reasonably accommodate her in this respect without imposing undue hardship on TFD.
 The record shows that Faris made various suggestions about how she could be accommodated. She offered to work on Saturdays after sunset; she was willing to work on Sundays; and she was available to work night-shift or early shifts or longer hours on the Thursday before the stock take and in the first part of the stock taking process commencing on the Friday in order to assist prepare for the Saturday. Some of these proposals were not practical solutions as the stock take needed to finish on the Saturday evening. However, there is no clear evidence of any meaningful engagement about possible alternative means of Faris acquiring the know-how and insight into the stock taking process sufficient for her to carry out her managerial functions. She clearly believed she could acquire the supervisory know how even if she was not in attendance throughout the monthly stock take.
 TFD took an erroneous approach to this matter. It assumed that it was incumbent on Faris to come up with practical solutions which suited its preferred commercial rationale; and when she failed to make suggestions to its liking it was entitled to dismiss her. More is required of an employer. The employer has a duty to reasonably accommodate an employee's religious freedom unless it is impossible to do so without causing itself undue hardship. It is not enough that it may have a legitimate commercial rationale. The duty of reasonable accommodation imposed on the employer is one of modification or adjustment to a job or the working environment that will enable an employee operating under the constraining tenets of her religion to continue to participate or advance in employment.
 The evidentiary burden of showing undue hardship by non-compliance with the requirement is on the employer. Beyond Smith's say so (that practically stock takes could only take place on a Saturday) there is insufficient evidence showing that Faris could not have obtained the requisite knowledge of the stock taking process by other means or that it was not possible to develop her in other managerial functions and to advance her mainly in that direction. She herself believed it was possible to acquire the knowledge at other times and that she could still have assumed a supervisory role with some measure of accommodation. But there was little inclination to try out her suggestions. Moreover, it is common cause that she performed well in all other aspects of her job, and as already found, her absence did not impede, delay or frustrate the stock taking process.
 In the premises, I am persuaded that TFD did not reasonably accommodate Faris. It follows that TFD failed to discharged the evidentiary burden necessary to sustain the defences of fair discrimination or that under section 187(2)(a) of the LRA with the result that the dismissal was automatically unfair as contemplated in section 187(1)(f) of the LRA.
 The Labour Court awarded two amounts of compensation. It ordered payment of compensation equivalent to 12 months' remuneration in respect of the unfair dismissal and an amount of R60 000 in respect of unfair discrimination. The court did not adequately set out its reasoning in relation to the latter award but appears to have based it on the alleged derogatory manner in which Smith treated Faris at the meeting of 30 July 2012. The evidence on that score is contested and does not attain the standard required to establish liability under section 60 of the Employment Equity Act which requires there to be discriminatory conduct by an employee towards another employee and which is immediately brought to the attention of the employer. This has not been proven. Moreover, the award amounts to double compensation and is unduly punitive. The appeal should succeed to this limited extent. Although, Faris found work six months after her dismissal, the award of 12 months' compensation under section 194(3) of the LRA is a just and equitable award vindicating the unjustifiable infringement of her constitutional rights.
 During argument, counsel for Faris disclosed that he had been instructed by Legal Aid and had thus agreed to the usual Legal Aid tariff. He argued however that in the event of the matter being decided in favour of Faris, the court should order that costs of counsel be the ordinary costs of counsel and not be restricted to the Legal Aid tariff. The court is sympathetic to counsel's request. This appeal is a serious and complex matter involving constitutional issues which will impact not just on the parties involved in this appeal but society as a whole. Legal Aid sought the services of outside counsel to provide parity of arms. TFD is a large corporation with substantial financial and legal resources. It may be expected to pay costs commensurate with those of counsel that it employed...