The Employee's Right to Freedom of Religion versus the Employer's Workplace Needs: An Ongoing Battle: TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC)

Authors

DOI:

https://doi.org/10.17159/1727-3781/2021/v24i0a7973

Keywords:

Right to freedom of religion, right to manifest religion, religion, inherent human dignity, employer's workplace needs, employer's operational requirements, unfair discrimination, religious discrimination, voluntary and mandatory religious practices, reasonable accommodation

Abstract

The right to religion is well protected in the Constitution of the Republic of South Africa, 1996 (the Constitution) as well as attendant legislation. Section 15(1) of the Constitution provides that all persons have the right to freedom of religion. Section 31(1) of the Constitution then goes on to state that persons who belong to a religious community, amongst others, may not be denied the right to practise their religion with other members of that community. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against any person directly or indirectly on several grounds, which include the ground of religion. Section 9(4) of the Constitution on the other hand prohibits any person from unfairly discriminating against any other person on the ground of religion, amongst others. These constitutional protections resonate in both the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. Despite these protections, the right to freedom of religion is still a contested subject in the workplace, inter alia. The contestation intensifies when the right to freedom of religion results in an employee not being able to comply with one or more of the employer's workplace needs. Employers' who do not understand the balance that has to be struck between the employee's right to freedom of religion and its workplace needs will often find themselves on the wrong side of our labour laws if they dismiss an employee without having due regard to the employee's religion. This is what transpired in TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC).

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References

Bibliography

Literature

Bernard RB "Reasonable Accommodation in the Workplace: To Be or Not to Be?" 2014 PELJ 2870-2891

Cranmer F "Reasonable Accommodation for Religion in Employment and Provision of Services?" 2017 Law & Just – Christian L Rev 187-198

Ebrahim S and Tshoose C "The Right to Practice Cultural and Religious Beliefs in the Workplace – A Double-Edged Sword: Department of Correctional Services v Popcru (107/12) [2013] ZASCA 40" 2014 Obiter 732-739

Griffiths E "The 'Reasonable Accommodation' of Religion: Is This a Better Way of Advancing Equality in Cases of Religious Discrimination?" 2016 IJDL 161-176

International Labour Organisation Promoting Diversity and Inclusion Through Workplace Adjustments: A Practical Guide (International Labour Office Geneva 2016)

Case law

South Africa

Department of Correctional Services v POPCRU 2013 34 ILJ 1375 (SCA)

Dlamini v Green Four Security 2006 11 BLLR 1074 (LC)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2012 33 ILJ 2812 (LAC)

Lewis v Media 24 Ltd 2010 31 ILJ 2416 (LC)

MEC for Education KZN v Pillay 2008 2 BCLR 99 (CC)

Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC)

SACTWU v Berg River Textiles 2012 33 ILJ 972 (LC)

TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC)

Foreign

Ansonia Board of Education v Philbrook 479 US 60 1986

Eweida v United Kingdom 2013 IRLR 231 ECHR

Frazee v Illinois Department of Employment Security No 87-1945 1989 31 2 J Church State

Ontario Human Rights Commission & Theresa O'Malley v Simpsons-Sears Limited 1985 2 SCR 536 SCC

Syndicat Northcrest v Amselem 2004 2 SCR 551 SCC

Legislation

South Africa

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Labour Relations Act 66 of 1995

International and regional instruments

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)

European Union Guidelines on the Promotion and Protection of Freedom of Religion or Belief (2013)

International Covenant on Civil and Political Rights (1966)

United Nations Universal Declaration of Human Rights (1948)

Published

2021-11-03

How to Cite

Ebrahim, S. (2021). The Employee’s Right to Freedom of Religion versus the Employer’s Workplace Needs: An Ongoing Battle: TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC). Potchefstroom Electronic Law Journal, 24. https://doi.org/10.17159/1727-3781/2021/v24i0a7973

Issue

Section

Case Notes