Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.
In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.
What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?
And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?
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- In TFD Network Africa (Pty) Ltd v Faris (2019) 40 ILJ 326 (LAC) (TFD Network), the labour appeal court stated the following: ‘The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. 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.’
- In short, to constitute an inherent requirement of the job, firstly, such requirement must be necessary for the fulfilment of a legitimate work-related purpose and, secondly, it must be reasonably necessary to the accomplishment of that purpose.
- Subsequently, in Damons v City of Cape Town (2022) 43 ILJ 1549 (CC) (Damons), the constitutional court, however, held the viewpoint that, once it has been established that the specific requirement, like physical fitness, was an inherent requirement of a job, there was no obligation of reasonable accommodation on the part of the employer.
- According to the constitutional court, in Damons, such an obligation to accommodate would entail an obligation on an employer to create new positions in order to accommodate employees who did not meet the inherent requirements of a different job altogether – in casu, the employee applied for promotion to the position of senior firefighter and the employer refused to promote him on account of the lack of physical fitness, preventing him from undertaking strenuous physical activities inherent to the position of senior firefighter.
- In Sun International Management Ltd v Sayiti (2024) 35 SALLR 446 (LAC) (Sun International Management), the employee was a member of the Seventh Day Adventist Church and he was thus forbidden to work on the Sabbath, meaning from sunset on Friday to sunset on Saturday. The employer dismissed the said employee for incapacity in the form of his inability to fulfil the required weekend work obligations. The employer conceded that there was discrimination on the basis of religion against the employee, but contended that such discrimination was fair on the basis of s187(2)(a) of the LRA.
- In determining that the employer correctly adopted this approach, the labour appeal court held that TFD Network is distinguishable from Damons and specifically dealt with the inherent requirements test and the factors to be taken into account to establish reasonable accommodation on the part of the employer.
Inherent requirements test
- In dealing with such test, the labour appeal court adopted the following approach:
- it is essentially a proportionality enquiry
- a mere commercial rationale is not enough
- the requirement must be rationally connected to the job
- the requirement must be adopted in a genuine and good faith belief that it is necessary to the fulfilment of a legitimate work-related purpose
- lastly, such requirement must be reasonably necessary to the accomplishment of such purpose – in essence, reaffirming the approach as adopted in TFD Network
Reasonable accommodation factors
- In dealing with these factors, the labour appeal court adopted the following approach:
- consideration must take place as to whether or not the job could be modified or adjusted
- consideration as to whether or not the working environment could be modified or adjusted, must take place
- a consideration of practicability is required
- the usual suspect, namely, cost considerations, is relevant
- the availability of suitable alternative employment should be considered
- available resource also plays a part
- At the most fundamental level, the employer must prove that it was not possible to accommodate the employee without imposing undue hardship or insurmountable operational difficulty.
