Employers Have Close Shave With Religious Discrimination

Employers Have Close Shave With Religious Discrimination

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.


Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds One of these grounds is that of religion. This means that no employer is entitled to discriminate against an employee or applicant for employment purely on the grounds of the employee’s religion. For example, it would be discriminatory for an employer to:

  • Turn down a job applicant because he/she was Christian, Jewish, Moslem or a believer in any other religion
  • Decide that only employees belonging to a specific religion will be allowed to go to church during working hours
  • Require employees only of certain religions to work on public holidays.

However, while all of the above are examples of discrimination they will not necessarily always constitute unfair discrimination. Whether such discrimination is unfair or not will depend to an extent on whether or not the discrimination makes objective sense. For example:

  • Turning down a Jewish person for the position of Pope would not be unfair
  • Refusing to employ an atheist as a priest would be seen as fair
  • It would not be unfair to allow only Moslems to go to mosque

A key contributing factor as to whether discrimination at the workplace makes sense is whether or not it is based on the inherent requirements of the job. For example, forcing employees to stop wearing emblems of their religion might be unfairly discriminatory especially if such emblems are worn under the clothing. This is because the wearing of such emblems is unlikely to affect the employees’ work circumstances in any way.

However, should employees working with machinery insist on wearing their religious emblems on chains dangling freely around their necks the employer would obviously be entitled to prohibit this on the grounds of safety. Such prohibition would then not constitute unfair discrimination unless employees of certain religions were allowed to wear the dangling chains and others were not. Hence, consistency also plays an important part in establishing the fairness of discrimination.

It is important to note that each case must be evaluated in terms of general principles such as consistency, the need for good sense and the inherent requirements of the job, as applied to the circumstances of each case.

In the case of Dlamini and Others VS Green Four Security (2006, 11 BLLR 1074) the employees, who were all security guards, belonged to the Nazarene religion. They had received an order to shave or trim their beards but refused on the grounds that the Nazarene religion forbade them to do so. As a result they were dismissed and claimed that the dismissal was automatically unfair as it involved unfair discrimination against them due to their religious beliefs.

The employer argued that:

  • bearded guards looked untidy and that a tidy and clean-shaven appearance was both an inherent requirement of the job as well as a necessity of the image of the company.
  • The employees had contractually agreed to be clean shaven
  • The employees had been clean shaven when they were employed

The Court found that:

  • The employees had failed to prove that cutting of beards was a central tenet of their religion and that they would have to suffer a harsh penance should they breach such tenet
  • The employees worked on Sundays despite the fact that their religion forbade it. This indicated that the church applied its rules flexibly
  • The employees had been selective about which religious rules they chose to follow
  • The rules requiring guards to be clean shaven had been applied consistently by the employer
  • Grooming is an important factor in all security establishments
  • The employees had not been unfairly discriminated against.

Employers are warned that this finding does not mean that they will always win cases concerning alleged unfairness relating to religion or to the appearance of their employees. Employers require expert advice in applying the legal principles to each specific case.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.

Beware Using Retrenchments For Clean Out

Beware Using Retrenchments For Clean Out

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.

The CCMA and Labour Court are wise to employers who misuse retrenchments in order to get rid of employees who they do not want. Due to this and the dire consequences of such misuse employers should consider the retrenchment route only when there is a genuine redundancy.

These authorities are putting more and more onus on employers to provide good reasons for retrenching employees. For example, in the case of FAWU vs SA Breweries Ltd (Contemporary Labour Law Vol 14 No. 2 September 2004) the employer retrenched employees after a major reorganisation in the way that work was done. This change required that production employees would need to be able to perform a much wider variety of work than previously. In order to establish whether these employees had the required skills to work in the changed jobs the employer applied, amongst others, the ‘ABET test’. That is, in the absence of other suitable educational qualifications, the employer tested the employees to assess their levels of at Adult Basic Education and Training (ABET). Certain employees who failed these tests were selected for retrenchment.

The Labour Court found that:

  • Retrenchment has a “.. deleterious impact on the life of workers and their families …” and can be seen as a “death penalty”
  • Therefore an employer contemplating retrenchments must be able to prove that such dismissals were implemented as “a last resort”
  • And if there was a viable alternative to retrenchments the employer is obliged to implement it
  • SAB acted unilaterally in applying the ABET levels
  • These ABET levels were not a valid test of the retrenchees’ ability to work in the newly created jobs. This is because ABET measures more general abilities rather than the specific skills required for the specific jobs in question. The employees’ experience should also be taken into account in assessing their suitability for the jobs.
  • SAB did not argue that it did not have the funds to devise a valid and appropriate test to assess the suitability of the employees for the newly created positions. The employer therefore could have and should have had such appropriate tests designed.
  • The retrenchees had long service
  • Due to apartheid the employees’ only schooling option had been “Bantu education”
  • SAB had not taken adequate steps to assist the employees to obtain the desired ABET skills levels
  • SAB had been inflexible as regards the consultation process.
  • The retrenchments of these employees was unfair both procedurally and substantively (i.e. was for unfair reasons).

In the case of Pedzinski vs Andisa Securities (Pty) Ltd (2006, 2 BLLR 184) the employer retrenched Pedzinski. However, the Labour Court found that:

  • The reason given by the employer for the retrenchment was bogus
  • Pedzinski had reported the employer to seniors in the group of companies for irregular share trading activities
  • The retrenchment was a false means of getting rid of Pedzinski in retaliation for the report he had made
  • Pedzinski’s report fell under the ambit of a protected disclosure and his sham retrenchment was therefore automatically unfair
  • The employer was ordered to pay the employee 24 months remuneration in compensation for the unfair dismissal as well as to pay the employee’s legal costs.

In Makwela / Unilever [2014] 4 BALR 371 (CCMA) the applicant was retrenched after the manager of a client’s store in which he worked informed his employer that he would no longer be allowed entrance to the store. The employer therefore retrenched the employee.

The Commissioner found that the respondent’s acquiescence to the wishes of its client had deprived the applicant of his right to fair labour practices – in particular the process required to address his alleged poor performance. Reliance on “operational requirements” was a fiction designed to avoid calling the client to justify its allegations.

The applicant was awarded compensation equal to ten months’ wages.

Employers need to learn form the above cases that:

  • The biggest, most powerful and most experienced of employers can lose in the Labour Court. Therefore, no effort must be spared in ensuring legal compliance
  • Retrenchment cannot be misused to execute private agendas
  • The need to apply labour law expertise is not a luxury but a basic necessity
  • Such expertise must be applied before a retrenchment decision is made.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 084 521 7492.

Beware Using Retrenchments For Clean Out

Beware Victimising Workplace Grievants

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. Website: www.labourlawadvice.co.za.

All grievances should be treated with great care in order to establish their validity and to ensure that they are given appropriate attention. Some employers are too soft and trusting when receiving grievances and give in even before establishing whether the grievance has merit.

However, more often employers go to the opposite extreme and brush all grievances aside because they feel that they are not there ‘to deal with employees’ sob stories’ or because the statutes do not provide for the lodging of grievances. While it is true that no statute specifically requires employers to solve their employee’s personal problems there are many circumstances under which employers would be foolish to ignore grievances. For example:

  • Where the continued existence of the problem affects employee morale this may in turn cause a drop in productivity, increases in wastage, resignations and even conflict. This normally occurs where the resolution of the grievance is seen by the employees as the employer’s responsibility. This would for instance be so if the employer moved premises resulting in commuting problems for the employees.
  • Where employees are being abused verbally or physically by a manager the practical and legal consequences for the employer could be dire if the employer does not act quickly, fairly and effectively. This would be the case, for instance, where the employee is being sexually harassed, insulted or bullied.

Employers are reminded of the expensive consequences for the employer in the Real Security case we discussed some months ago. There the employer had to pay tens of thousands of rand in compensation to the employee who had been sexually harassed by a supervisor because the employee’s grievances were ignored by the employer.

Employees whose salaries are not paid to them and receive no satisfaction from the employer when expressing such grievances are, under specific circumstances, entitled by law to resign and take the employer to the CCMA or bargaining council for constructive dismissal (a type of forced resignation).

Some employers not only ignore all employee grievances but also victimise certain employees for raising those grievances. Such employees are arbitrarily labelled as ‘trouble-makers’ and are told to ‘like it or take a hike’. In Sweet (James) v Namcon Logistics (Pty) Ltd[2021] 1 BLLR 104 (LC) a warehouse manager was dismissed for negligence. He claimed that his dismissal was automatically unfair because it was implemented in response to grievances he had lodged. The Court found that:

  • Victimisation of an employee for lodging grievances does not breach the provisions of sections 187 or 5 of the LRA
  • the employer’s reasons for justifying the misconduct dismissal were unconvincing
  • While the employee had not lodged a dispute at the CCMA regarding his grievances he had indicated that he intended to take legal action in this regard
  • The employee had been dismissed because of his intention to take legal action against the employer which was in breach of the LRA’s provisions according to an earlier Labour Appeal Court decision.

The applicant was awarded compensation equal to 24 months’ remuneration and the respondent was directed to pay his costs. In the light of the above it is crucial for employers who receive grievances:

  • To ensure that the grievant is not mistreated in any way after having lodged the grievance
  • To investigate each grievance thoroughly while keeping an open mind
  • Judge the validity of the grievance based on the facts and not based on who has lodged the grievance or who has been named in the grievance.
  • If there is any merit in the grievance use an industrial relations expert to help devise an appropriate solution that will not create a problematic precedent.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.

Treat Workplace Disruptions With Care

Treat Workplace Disruptions With Care

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za.

Where employees disrupt the workplace the operations of the business can be seriously affected. Employees who behave in a disruptive manner might do so for a variety of reasons including:

  • Abuse of alcohol or other substances
  • Incompetence – that is, while the employee is not intentionally disruptive, his/her inability to perform properly disrupts the flow of work in the workplace
  • Resentment – Employees may resent receiving a low or zero pay increase,
  • Unwillingness to work – there are many employees who tend to behave disruptively either because they do not care if they get fired or because they
    are trying to get fired. Then they can tell their families that it was not their fault and go and make money at the CCMA by alleging ‘unfair dismissal’
  • Industrial action – employees trying to pressurise the employer may, instead of going on a fully fledged strike, embark on disruptive behaviour.
  • Dislike of a colleague or a boss.

Disruptive behaviour at the workplace can be seriously damaging to the effectiveness of business operations and can even result in losses for the employer. For example, disruptive behaviour can cause:

  • Bosses to lose their tempers
  • The speed of production to slow down
  • Legal disputes arising from unprocedural discipline and dismissal
  • Service to clients to suffer
  • Loss of orders or of clients
  • Injury to employees or other people
  • The quality of products to deteriorate
  • Damage to property
  • Clashes between employees and managers or amongst employees

It is therefore most important that the employer acts swiftly and firmly yet within the law in order to minimise the damage and send a strong message that such behaviour will not be tolerated. Especially where an employee’s disruptive behaviour is habitual the employer needs to follow the correct disciplinary procedure to prove that the employee is guilty. Otherwise there is a danger of the disruptive employee being reinstated by the CCMA, Labour Court or bargaining council.

In the case of Mofokeng vs Afrikaans Import and Export cc (2001, 11 BALR 1184) the employee was dismissed for disrupting the workplace after he had
been caught under the influence of alcohol and had refused to obey the instructions of a superior. However, the employer reinstated the employee as it wanted to give him one more chance and commuted the dismissal to a final warning. Later the employee was again dismissed, this time for driving a forklift under the influence of alcohol, damaging the employer’s property with the forklift, smashing the windows of the company quarters in which he lived and loudly threatening management while the owner was on an international telephone call. Instead of calling a disciplinary hearing the employer fired the employee on the spot. The CCMA stated that the existence of the final warning did not exempt the employer from holding a disciplinary hearing.

Employees are advised, if they are aggrieved by anything at work, not to disrupt the workplace lest they end up out on the street. Instead, aggrieved employees should lodge formal grievances and/or CCMA disputes.

Employers are advised, when faced with ‘disruptive employees to:

  • Avoid losing their tempers
  • Use their most expert labour law specialist to help:
  • carefully and thoroughly investigate the cause of the problematic behaviour
  • arrive objectively and unemotionally at the route cause of the problem
  • decide upon a legally compliant, practical and effective course of action appropriate to the particular type of disruption and to its specific cause. Such action may vary from a warning to a disciplinary hearing or from counselling to training or treatment.

To book for our 5 November webinar on BALANCING WORKPLACE EFFECTIVENESS WITH LEGAL COMPLIANCE please contact Ronni on [email protected] or 0845217492.

Labour Brokers The Meat In The Labour Law Sandwich

Labour Brokers The Meat In The Labour Law Sandwich

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za.

The Labour Relations Act (LRA) provides that dismissal must be the last resort where the employer needs to remedy an employment related issue. This principle applies whether the problem relates to poor work performance, misconduct, job redundancy or incapacity due to illness or injury.

Historically, judges and arbitrators usually gave careful consideration to the prevailing circumstances in deciding whether the potential alternatives to dismissal could realistically have been implemented as a viable solution to the problem at hand. Where this has been done it has been in the interests of balancing fairness towards employees and employers.

However, a number of unfair dismissal decisions under the new dispensation can be seen as suggesting a trend towards an imbalance favouring employees. The highly publicised Sidumo vs Rustenburg Platinum Mines epic has been described as a case in point. While space does not allow for discussion of numerous other case decisions bemoaned by employers, we will discuss one case decision reported in 2010.

In Nape vs INTCS Corporate Solutions (Pty) Ltd (2010 CLL Vol. 19 No. 11)INTCS provided employees to Nissan (Pty) Ltd on the basis of a labour broker or TES (temporary employment service) contract. Nape, one of INTCS’s employees assigned to Nissan was found guilty of distributing, via Nissan’s email system, an offensive email to another person working at Nissan. At his disciplinary hearing he was issued with a final warning. This appears to have been based on INTCS’s disciplinary guidelines or policy relating to offensive communications. However, Nissan viewed this conduct as far more serious and refused to accept Nape back on to its premises.

Being unable to place Nape at Nissan or anywhere else, Nape was retrenched on the basis that there was no job for him and that a clause in his employment contract required INTCS to withdraw Nape from the client’s premises should the client require this. The Labour Court found that:

  • Such a contractual clause was against public policy and therefore invalid and unlawful
  • INTCS could have and should have resisted Nissan’s refusal to take Nape back by interdicting Nissan in court to prevent Nissan from refusing to take Nape back
  • It was unfair for INTCS to have retrenched Nape before having attempted to resist Nissan’s decision to refuse Nape’s return to work.

This decision is a major shock for employers because:

  • The finding that the clause giving Nissan the right to bar Nape was contrary to public policy fails to take into account that any person(including a business) has the right to bar any other person from its premises particularly where the person barred has committed an offence
  • Had INTCS ignored Nissan’s decision for Nape to be barred and had it ignored the relevant contractual clause Nissan could still simply have refused Nape entry to its premises and halted its payments to INTCS for Nape’s assignment
  • Had INTCS then have continued to press for Nape’s return to work at Nissan by, for example, sending threatening letters to Nissan or suing this client in Court, INTCS would have incurred the serious and real risk of losing the entire Nissan contract which was one of its biggest contracts. This would have resulted in the loss of a great many jobs and serious financial losses to INTCS.

Furthermore, It would have been most unlikely that INTCS would have succeeded via an interdict application to force Nissan to take Nape back. This is especially because:

  • Nissan is a large and powerful company with the resources to fight such cases robustly
  • The clause in the agreement between Nissan and INTCS gave Nissan the contractual right to bar any INTCS employee
  • Nape was found guilty of a serious offence committed on Nissan property
  • In addition, such interdicts are normally only granted on the basis where urgency can be proved and it is highly unlikely that the High Court would accept a claim of urgency in a situation where INTCS was unable to show serious losses due to the barring of Nape and where a contract agreeing to such banishment was in place.

Thus, while INTCS could in theory have applied for such an interdict, this route was unviable in the extreme.

To access the opinions of our labour law experts please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.

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