The Cost of Ignoring Heritage in the Workplace

On Friday, 24 September 2021, South Africa will observe Heritage Day. We are celebrating the cultural wealth of our nation and remembering the cultural heritage of the many cultures that make the population of South Africa diverse and vibrant. We will be looking at heritage in the workplace and the importance of recognising it  and the potential costs of failing to do so.

The cost of not respecting heritage in the workplace

Unfortunately, a failure to respect these differences may lead to unfair discrimination in the workplace. This in turn could lead to serious sanctions against unsuspecting employers who are unsure of when and how to institute incapacity or disciplinary proceedings. In this article, we discuss how we can appreciate the diversity in our workplaces whilst also being fair towards all our employees and in doing so, minimising potential costs.

We live in a diverse country and are the richer for it. It is our diversity in the workplace that rounds out our capacity to perform better on the world stage. By failing to recognise and capitalise on this diversity, we are not only limiting our capacity for growth, but we are also setting ourselves up for very costly litigation that we will invariably lose. Below are some examples of areas where employers could be falling foul of the law.

Respecting religion

Our labour legislation affords employees protection against discrimination on several grounds, including religion. This protection has at its foundation the constitutional protection of a person’s dignity. In the case of TDF Network Africa (Pty) Ltd vs Faris (2018), the employee had been employed by the company as part of its graduate management training programme.

According to the company, it required the employee to attend stock-taking once per month on a Saturday. The employee refused to attend on the basis of her faith as a Seventh Day Adventist. Seventh-Day Adventists are required to observe the Sabbath between sundown on Friday and sundown on Saturday, during which time they are ordinarily not permitted to work and must dedicate themselves to spiritual and religious matters.

There were several interactions between the employee and the company. The employee requested the company to accommodate her. She proposed alternatives, which included her willingness to work after sunset on a Saturday and on a Sunday. The company was not willing to make an exception for her and expected her to obtain a special dispensation from her church to allow her to work on a Saturday. The employee was not prepared to do so. When the employee persisted with her refusal to work on a Saturday, an ‘incapacity’ hearing was scheduled and she was dismissed. She disputed her dismissal on the basis that it was ‘automatically unfair’.

The company argued that it was an inherent requirement of the job that she had to work on Saturday. The courts carefully considered this argument, but explained that in order for the employer to be successful with this argument, the requirement (i.e. working on Saturday) 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 and that it was impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty. In this case, the court found that the company had successfully been doing stock takes without her there on Saturday. As a result, it is clear that they could achieve their main purpose without her there and therefore they could not prove that her absence would cause undue hardship to them.

After a lengthy and costly litigation process, the Labour Appeal Court (“LAC”) therefore held that the company had failed to prove that the dismissal was fair based on an inherent requirement of the job. The employee’s dismissal was ruled to be automatically unfair. As a result, the LAC upheld the Labour Court’s award of 12 months’ remuneration as compensation, notwithstanding the fact that the employee found work six months after her dismissal.

Another area where our different religions may cause friction in the workplace is when employees want to take leave for religious holidays. On the one hand, employers may want to promote religious fairness but also minimize abuse of absenteeism. Many employers are also unsure of how they should deal with religious holidays in an efficient but indiscriminating manner. Often, the best solution is a clear rule which is reduced to writing in a contract and/or leave policy.

Respecting different languages

It is also imperative that speakers of different languages are also able to communicate in a language that they are comfortable with, especially during labour law procedures. If an employee is performing poorly, is incapacitated due to ill-health or has been accused of a disciplinary offence, he or she has the right to a fair process conducted in a language they can understand. Therefore, the Chairperson of disciplinary or incapacity hearings needs to ensure that employees have a fair chance to explain their versions or situations, respectively. A failure to do so may result in a procedurally unfair hearing which may lead to reinstatement with back pay or compensation.

How can we help you?

From the above examples, it is clear that our courts take religious freedom and other constitutional rights and freedoms very seriously. Tolerance is not enough. Employers must show that they will genuinely make an effort to reasonably accommodate the rights and freedoms of their employees.

If you are unsure if your contracts and policies promote non-discrimination in the workplace, we are here to assist you with our Human Resource Manuals. They are available in a variety of packages to suit your needs. If you fear costly litigation and awards against you, we can provide informed, qualified and experienced labour law experts to advise on and chair disciplinary and incapacity hearings. Need free 24/7 advice to avoid mistakes? We always assist our members.

Contact us

Contact us today if you want to ensure that you are promoting and not prohibiting diversity in the workplace. Our IR Specialists and policies will give you the peace of mind to comfortably conduct your business whilst harnessing the diversity in your workplace.