Background

The employee’s contract of employment stated, inter alia, that “…normal hours of work will be 08h30 to 17h00 Mondays to Fridays, with an hour for lunch. However, due to the nature of the business, you will be required to work longer hours from time to time without additional compensation.” Furthermore, the employee’s employment contract contained a job flexibility requirement clause which stated that the employee may be required to perform work in other roles or departments, and should the employee refuse, disciplinary action may be taken. At the time that the employee was appointed and the agreement concluded, the employee agreed to the terms and did not raise any concerns.

Soon thereafter, the employee indicated that he is unable to travel or to attend to work events that took place during the Sabbath (from sunset Friday to sunset Saturday) on the basis of his religious beliefs as he identified as a Seventh Day Adventist. The employer accommodated the employee for a period of 16 months by delegating the relevant duties that fell over the Sabbath period to other employees, including a line manager. However, given capacity constraints, this accommodation was no longer tenable and an incapacity process and hearing was convened. The employer submitted that working on weekends was an inherent requirement of the job and offered the employee an alternative position that came with a 45% salary reduction. The employee refused the offer of the alternative position. The employer terminated the employment agreement based on incapacity.

The Court

The Labour Court found that the employee’s dismissal was automatically unfair in terms of section 187(1)(f) in that the dismissal constituted discrimination on the basis of religion and that the employee was unfairly discriminated against in terms of section 6 of the Employment Equity Act 55 of 1998.

On appeal, in the Labour Appeal Court, the majority judgment found that the employee’s dismissal was not automatically unfair, as the weekend work requirement was an inherent job necessity. Weekend work was deemed an inherent job requirement because the position involved attending and hosting events crucial for the company’s operations, including national and international trade shows. This role required flexibility and availability for events that may occur on weekends, especially for trade shows and promotional activities. The LAC therefore found that this obligation was rationally connected to the job’s purpose and essential for fulfilling its responsibilities.

Moreover, the employer had made reasonable efforts to accommodate the employee’s religious beliefs. The employer allowed the employee to refrain from weekend work for 16 months. The employer also offered him an alternative position as a sales coordinator, which did not require weekend work, although it came with a lower salary and was therefore rejected by the employee. These efforts demonstrated the employer’s commitment to balancing the employee’s religious practices with the operational demands of the business.

Key Takeaway

Employers must be careful in substantiating whether a job entails an inherent requirement, and whether the employer has made adequate efforts to accommodate the employee where relevant. The factual context and these considerations are important factors for employers to carefully assess in situations where an employee is unable to or elects, for example, on the basis of religious belief, not to meet an inherent requirement of the job she/he holds.