Employees might be forced to work on faith holidays if employer needs them to

In terms of Section 15(1) of the Constitution, everyone has the right to freedom of conscience, religion, thought, belief and opinion.

In terms of Section 15(1) of the Constitution, everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Section 187(1)(f) of the Labour Relations Act 66 of 1995 states that a dismissal is automatically unfair if the reason for the dismissal is that the employer discriminated against an employee directly or indirectly on any arbitrary ground including, but not limited to, religion, conscience or belief.

It would appear from the above that an employer would not be entitled to deny an employee from a religious minority group a day off on his religious holiday.

For example, it would appear that an employer would not be able to deny a Jewish employee a day off for Yom Kippur or a Muslim employee a day off for Eid.

But the labour court has found that the requirements of an employer or the requirement of a job take precedence over the practice of faith by religious minorities on working days.

In the case of Fawu & Others vs Rainbow Chicken Farms (2000) 21 ILJ 615 (LC), the butchers employed by Rainbow Chicken Farms were all Muslim employees specifically employed to slaughter chickens according to Halaal standards.

When the butchers refused to work on Eid, which is a Muslim religious holiday but not an official public holiday, they were dismissed.

As a result, the employees claimed that they had been unfairly discriminated against on the grounds of their religion and that their dismissals were therefore automatically unfair.

The labour court held that the employees were not unfairly discriminated against and that unfair discrimination would only have taken place if the employer had permitted some employees but not others to take a day off for Eid.

Allowing the employees to take the day off for Eid would have resulted in the entire workforce also having to take the day off, at Rainbow Chicken Farm's expense.

The court therefore held that requiring employees to work on religious holidays that are not official public holidays is justifiable on operational grounds.

l Lavery Modise is director at Routledge Modise Attorneys. He is helped by Sian Wilkins, candidate attorney at Routledge Modise Attorneys.

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