Religious freedom is a basic constitutional right. However, when an employee insists on exercising that right in the workplace it might become a sensitive and controversial matter.
Employers often have operational reasons for setting certain standards and requirements in the workplace. Employers may for example require employees to comply with a particular dress code, standard of hygiene or neatness. In a diverse and multicultural society such as ours it is not unusual for such standards or requirements to clash with a particular religion or belief.
The issue of religious freedom was considered in the Labour Court case of Dlamini & others v Green Four Security. Mr Dlamini and some of his fellow employees claimed to belong to the Baptised Nazarene Group which, they submitted, did not allow them to trim their beards. As a security company, the employer had a rule that required them to be clean-shaven. After they had persistently refused to shave the employees were dismissed. They alleged that they had been discriminated against on religious grounds and challenged their dismissal as being automatically unfair.
The court adopted the approach that their claim was based on a constitutional right. If a workplace rule unlawfully and unjustifiably violated a constitutional right, the constitutional right would prevail. In order to establish whether the employees had a case, the court followed a three-phased approach:
- Could the employees prove discrimination?
- If discrimination was proved, was the rule justified on the basis of it being an inherent requirement of the job?
- If the rule was justified, should the impact of the rule have been ameliorated by reasonably accommodating the employees in some or other way?
The court found that there had been no discrimination because the employees had failed to prove that not trimming a beard was an essential tenet of their religion and that they were obliged to observe it. Otherwise, the judge observed, it would be open to anyone to seek refuge under the pretext of religion to claim to be accommodated, avoid an obligation or simply break the rules. The court found that the rule did not differentiate amongst employees because everyone had to be clean-shaven. The employer had also been consistent in the application of the rule. In the final analysis the court found that the rule did not violate the employees’ right to freedom of religion.
In case it had set too high a standard of proof in this regard, the court looked into the second stage of the enquiry. While it recognised the importance of freedom of religion, the court found that such freedom had its limitations. After making a comparative analysis within the security industry, it found that grooming is a high priority in the industry. The rule that employees should be clean-shaven was an inherent requirement of the job and was neither arbitrary nor irrational. Mr Dlamini’s version that he was nicknamed “fundise” because his beard made him look like a priest did not assist him in his claim. The court found that the image that this projected was inconsistent with the image that the employer sought to project. The religious rule had no apparent reason for its existence whereas the workplace rule had. Therefore, when weighing up these rules, the workplace rule prevailed.
Regarding the question as to whether an employer should reasonably accommodate the religious needs of their employees, the court remarked that this should not involve undue hardship to the employer. The employees in this case had indicated in their evidence that even if the employer had offered that they trimmed their beards neatly, they were of the firm belief that it was against their religion and that such an offer would not have been accepted. It was therefore unnecessary to decide on this issue.
Due to the diversity of our society, other workplace rules that promote images or brands are likely to give rise to similar controversial and interesting cases.
Written by Jan Truter of www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or firstname.lastname@example.org