With an increasing number of cases being brought before our specialist courts involving automatically unfair dismissals on the grounds of discrimination, we have to ask the question: where do we draw the line between an inherent job requirement and discrimination? This issue was recently revisited by the Labour Appeal Court (“the LAC”).
Section 187(1)(f) of the Labour Relations Act 66 of 1995 (“the LRA”) states that a dismissal is automatically unfair if an employer “unfairly discriminates against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language etc..”
Although the definition is wide, section 187(2)(a) states that a “dismissal may be fair if the reasons for dismissal is based on an inherent job requirement.”
In the recent judgment of Sun International Management Limited v Sayiti (JA13/23) [2024] ZALCJHB 411 (21 October 2024) the employee (“Mr Sayiti”) applied for, and accepted the position of Marketing Manager for the appellant. After accepting the position Mr Sayiti advised the appellant that he was a Seventh Day Adventist and could therefore not work from sundown on Fridays to sundown on Saturdays (“the Sabbath”), despite his contract of employment stipulating that he would, “due to the nature of the appellant’s business, be required to work longer hours from time to time without additional compensation.”
Mr Sayiti advised his line Manager that he would be unable to attend trade shows (despite this forming part of his duties as Marketing Manager) that took place over the Sabbath. Once becoming aware of such circumstances Mr Sayiti’s line manager advised the Company’s Human Resources Department, which endeavoured to accommodate Mr Sayiti’s religious beliefs. This involved Mr Sayiti’s line manager, and other employees in the department, having to step in to fulfil Mr Sayiti’s duties during the Sabbath. Such accommodation took place over a period of 16 months until Mr Sayiti’s line manager became too encumbered with her own duties that it was not possible nor sustainable for her to continue fulfilling Mr Sayiti’s duties.
As a result, Mr Sayiti was subjected to an incapacity enquiry. The Company held that working on Fridays and Saturdays was an inherent job requirement. Mr Sayiti raised the point that his contract of employment did not expressly stipulate that he would be required to work on the weekends. The appellant, on the advice of the Chairperson, offered Mr Sayiti the alternative of becoming a Sales Coordinator which he declined, due to the 45 percent salary reduction that came with the position. Mr Sayiti was thereafter dismissed and referred an automatically unfair dismissal dispute on the grounds of discrimination, to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). After an unsuccessful conciliation the matter was referred to the Labour Court (“the LC”).
The LC ruled in Mr Sayiti’s favour finding that the Company had unfairly discriminated against Mr Sayiti on the grounds of religion. The LC found that working on the weekends was not an inherent job requirement and that the appellant had failed to accommodate Mr Sayiti’s religious beliefs.
On appeal, the LAC had to determine whether Mr Sayiti performing work over the Sabbath was an inherent requirement of the job. In doing this, the LAC considered and applied the proportionality test set out in TFD Network Africa (Pty) Ltd v Faris (2019) 40 ILJ 326 (LAC) (“TFD Network”):
“[62] In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.
[64] However, even if that is shown, the enquiry does not end there. In addition, the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.”
The LAC issued two judgments. In both judgments, the LAC applies the abovementioned test. Both judgments also found that working over the weekends was an inherent job requirement of the Marketing Manager position although it was not expressly stated in Mr Sayiti’s contract of employment.
Where the majority and dissenting Judgments diverged, was on the issue of whether the Company could reasonably accommodate Mr Sayiti. The majority judgment found that the Company had taken reasonable steps to accommodate Mr Sayiti’s inability to work over the Sabbath. The majority also found that the Company had been lenient and supportive, but with the change in Mr Sayiti’s line manager’s duties, the situation became intolerable. The offer of the position of Sales Coordinator was the most appropriate offer that did not require weekend work. Therefore, Mr Sayiti’s dismissal was found to be fair.
Determining whether an employee cannot comply with the inherent requirements of their position is a multi-faceted enquiry. Where an employee’s dismissal is found to be automatically unfair, an employer may be required to reinstate that person, or pay them a maximum of 24 months’ compensation. Often claims involving an automatically unfair dismissal involves elements of discrimination and may also place the employer at risk of a damages claim under the Employment Equity Act 55 of 1998. As such, when dealing with issues of this nature, employers should take specialist legal advice prior to engaging in any incapacity.
