Sun City-owner under fire

Sun International recently found itself in a legal battle with a former employee who claimed that they were unfairly dismissed for not working at certain times due to their religious beliefs.

This was explained by experts from Cliffe Dekker Hofmeyr’s (CDH) Employment Law practice, who pointed out that the tension between religious beliefs and workplace requirements can cause issues for both employers and employees.

South Africa’s employment law is generally very tolerant towards religious accommodations.

For example, the Basic Conditions of Employment Act (BCEA) stipulates that public holidays – two of which are considered religious holidays in South Africa – may only be worked by agreement between employer and employee.

Employers are not allowed to contract out of this obligation by adding a clause in the employee’s contract that states that all public holidays are “normal working days.”

However, the situation becomes more complicated when an employee needs time off for religious purposes on days that are not legislated public holidays.

This is especially challenging when a weekend day is considered a Sabbath, but the employer requires the employee to be at work for operational reasons.

This issue was also raised against Sun International.

In this case, the employee contested his dismissal over his inability to perform an inherent requirement of the job, working between sunset on Friday and sunset on Saturday, because of his religious beliefs.

“During the hiring phase, the employee agreed to the terms of his employment contract and did not raise any concerns,” CDH experts said.

The contract stated 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.”

Not long after commencing his employment, though, he indicated that he was unable to work events that took place during the Sabbath – from sunset Friday to sunset Saturday – on the basis of his religious beliefs since he identified as a Seventh Day Adventist.

CDH experts said that initially, Sun International accommodated the employee by delegating the relevant duties over the Sabbath period to other employees.

“However, after 16 months this accommodation was no longer tenable due to capacity constraints and an incapacity process and a 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, and their employment agreement was consequently terminated based on incapacity.

Although the case was initially ruled as an unfair dismissal in the Labour Court, when taken on appeal the Labour Appeal Court (LAC) ruled in favour of the employer on the basis that the employee’s dismissal was not automatically unfair.

According to CDH’s experts, this was because the court found that the weekend work requirement was an inherent job necessity.

In addition to this the LAC recognised the effort that the employer had taken to initially accommodate the employee for more than a year, as well as to offer an alternative position when they could no longer make the accommodation.

These efforts demonstrated the employer’s commitment to balancing the employee’s religious practices with the operational demands of the business.

CDH experts advised employers and employees to be especially detailed when it comes to the small print around working hours and job requirements during the recruitment and onboarding process.

“In the rush of signing contracts and ensuring roles of filled, the importance of the detail can sometimes get lost.

“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.”