In terms of section 187(2)(a) of the Labour Relations Act 1995 (LRA), a dismissal based on unfair discrimination may be fair if the reason for dismissal is based on an inherent requirement of the particular job.

In the matter of Sun International Management Limited v Sayiti (JA 13/23) [2024] ZALAC 52 (21 October 2024) the Labour Appeal Court (LAC) had to consider this defence in the context of an employee’s religious beliefs, which prevented him from performing weekend work. In particular, the case considers what efforts an employer is required to make to reasonably accommodate an employee who is unable to fulfil the inherent requirement of a job.

Background facts

The Respondent, a former employee of Sun International Management Limited, was employed as a marketing manager. According to his employment contract, he was required to work from 08h30 to 17h00, Mondays to Fridays, as well as such longer hours as may be required due to the nature of the employer’s business.

He had not raised any challenges concerning the hours of work and/ or working days during his interviews. This notwithstanding, almost two months after the commencement of his employment, the Respondent informed the employer that he could not travel or attend work events on the Sabbath (which commenced at sunset on Friday until sunset on Saturday) because he was a member of the Seventh Day Adventist Church.

The employer initially took no issue with the Respondent’s religious observations and attempted to accommodate his religion by excusing him from work during the Sabbath. After a period of about 16 months, however, such accommodation became unsustainable for the employer as it resulted in increased responsibilities for, and began to put immense pressure on, the Respondent’s line manager (who had to step in for the Respondent by travelling to and representing the employer at various trade shows).

Accordingly, the employer initiated an incapacity enquiry on the basis that the Respondent could not perform the role of marketing manager based on the inherent requirements of the job. Whilst the employer explored alternatives short of dismissal and offered the Respondent an alternative role which would not require him to work on the Sabbath, the Respondent declined this position as it meant a large salary reduction.

In the circumstances, the employer terminated the Respondent’s employment for incapacity based on the inherent requirements of the job.

Findings in the Labour Court

Following failed conciliation, the Respondent referred a dispute to the Labour Court, claiming that his dismissal was automatically unfair on the basis that it constituted unfair discrimination on the ground of religion (relying on section 187(1)(f) of the LRA). Whilst the employer accepted that there had been discrimination against the Respondent, it argued that his dismissal was fair as it was based on the inherent requirements of the job.

Given the employer’s concession that there was discrimination, the Labour Court’s enquiry focused mainly on whether it was an inherent requirement of the Respondent’s job to perform weekend work.

In this regard, the Labour Court found that the employer failed to prove that working on weekends was an inherent requirement of the Respondent’s job – as his employment contract did not explicitly include a provision that he must work on weekends and weekend work was not rationally connected to the performance of the role of marketing manager. Further, the Labour Court found that the employer had failed to prove that it was impossible for the employee to be reasonably accommodated without imposing undue hardship on the employer’s operations.

As such, the Labour Court held that the Respondent’s dismissal was automatically unfair and ordered that he be reinstated.

The employer then took the matter on appeal to the LAC.

Findings in the Labour Appeal Court

Interestingly, the judgment by the LAC in this matter consisted of both a majority and a minority judgment. Both judgments relied on an earlier decision of the LAC in the matter of TFD Network Africa (Pty) Ltd v Faris, which set out the test for determining whether the defence in section 187(2)(a) applies.

In this regard, the judges agreed that the employer was able to prove that working on weekends was an inherent requirement of the Respondent’s job, despite the fact that his contract did not explicitly state that weekend work was a requirement. That is, the employer met the first part of the test (ie to show that the requirement was reasonably connected to the accomplishment of a legitimate work-related purpose).

However, when it came to the second leg of the test (ie proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty on the employer) the majority and minority took different views.

While the minority agreed with the Labour Court’s assessment on reasonable accommodation, the majority ultimately held that the employer had taken steps to reasonably accommodate the Respondent until it could no longer do so without imposing an undue hardship on the employer.

The majority considered in particular that:

• the Respondent sought employment in a position that manifestly required availability to work during the Sabbath in circumstances where he failed to disclose the limitations that his religious beliefs presented;
• when these limitations were eventually made known to it, the employer made a genuine effort to accommodate the employee, which it then continued to do for a period of 16 months until, for legitimate business reasons, doing so was no longer sustainable; and
• at this point, the employer offered the Respondent an alternative position (albeit at a lower salary, but there were no other suitable vacancies at the time). In so far as the employee refused the alternative position offered to him, the majority held that the employer had no legal obligation to create a new position for the sole purpose of accommodating the Respondent.

Accordingly, the majority held that the employer took such steps as were reasonably available to it in the circumstances to accommodate the Respondent’s inability to engage in weekend work on account of his religious beliefs.

The Respondent’s dismissal was therefore not automatically unfair, and the Court overturned the decision of the Labour Court.

Key takeaways

This judgment illustrates the following key principles:

• Determining whether there is an inherent requirement of the job and whether the employer has taken sufficient steps to accommodate an employee, is a factual question and, in defending an automatically unfair dismissal claim on the basis of section 187(2)(a), an employer will need to be able to establish both these elements.
• Whilst an employer may need to take steps to modify or adjust an employee’s job or working environment to reasonably accommodate them, the employer is not expected to suffer undue hardship or insurmountable operational difficulty in this regard and is especially not expected or required to create a new position to accommodate the employee.
• As such, an employee’s inability to meet an inherent requirement of a job, even when influenced by religious beliefs, can justify dismissal if reasonable accommodation is no longer viable. Put differently, religious accommodation, whilst important in the workplace, has limits, particularly when it significantly disrupts the employer’s business operations.

Written by Chloë Loubser, Knowledge and Learning Lawyer and Pascale Towers, Senior Associate at Bowmans Law South Africa