How far do you have to go to accommodate an employee's religion?
Let's say you ask an employee to work on a Sunday. It's in his employment contract, so you're not being unreasonable. But he tells you he's a devout Christian and he has to go to church and observe the day as a day of rest, and refuses to work.
Can you take disciplinary action against this employee for insubordination? He is, after all, refusing to obey your instruction?
What about a Muslim employee? What if he asks for time off on a Friday afternoon to attend prayers at the local mosque? This happens to be the busiest time in your shop and letting him go would cause you to lose vital revenue. So you say no. But the employee still left to attend prayers.
Can you discipline him for insubordination or being AWOL?
These and other interesting questions around religion have often gone to court.
So let's look at what happens…
Two factors the Courts look at to make sure both you and your employee are treated fairly
There are only three reasons you can fire an employee that the CCMA will consider 'fair' but there are hundreds of reasons you can fire an employee that's automatically 'unfair'!
Click here and I'll show you how you can dismiss fairly and legally!
The first is the obligation on the employee. If he feels your requirements, policies or demands jeopardise or threaten his beliefs, he has to let you know! If you don't know, he can't accuse you of being insensitive to his beliefs.
Your requirements must offend an essential element or principle of the employee's faith. In other words, it must be compulsory for the employee to stick to the element of his faith. For example, if your employee is Jewish he cannot eat pork. You run a restaurant and say all employees must taste every dish on your menu so they know what it is you serve. You can't force a Jewish employee to taste the dishes that have pork in them.
If the employee complains to the Labour Court about unfair discrimination or 'an automatically unfair dismissal
', you'll have to prove two facts.
Two facts you'll have to prove if an employee takes you to Court
Know the difference between insubordination, gross insubordination and insolence
There's a fine line between insubordination, gross insubordination and insolence of an employee. Do you know the difference? How would you discipline an employee in each instance?
If you get it wrong, you could lose at the CCMA!
The rule is an 'inherent' requirement of the job. This means that because of the employee's religious beliefs, he can't do the job at all. Or he can't do the job in line with the requirements. You'll also have to prove the requirements are generally accepted as reasonable in your business sector or the employee's profession.
You took reasonable steps to accommodate the employee's religious beliefs. For example, you let the employee who can't work on a Sunday work other shifts within your company.
If the employee doesn't tell you about his beliefs, he won't beat your decision to discipline, or even dismiss
, him for refusing to obey your instructions.
The balancing of religious rights in the workplace will always be a sensitive and emotive matter. At least now you have some guidelines when making decisions on how to accommodate these rights.
The Labour Law for Managers Handbook, will also help you with everything you need to know about religious (and other types) of leave.