Sun International Management was found to be in the clear by the Johannesburg Labour Appeal Court for dismissing a marketing manager, who due to his religious beliefs, could not work on weekends, as his job had demanded of him.
Sun International was said to have given Lucky Sayiti a lifeline for 16 months after he started working for the company. His workload over weekends was shifted to another employee. But it eventually became impossible to continue with this arrangement.
The company offered Sayiti an alternative posting, which he declined as it came at a reduced salary. Sun International eventually held an incapacity inquiry, and it was subsequently decided to terminate his employment.
The Labour Court, meanwhile, held that his dismissal was automatically unfair in terms of the Labour Relations Act.
Sun International turned to the Labour Appeal Court, where the appeal was upheld. The court held that the dismissal was substantively and procedurally fair.
Sayiti is a member of the Seventh Day Adventist Church and could not travel or attend events on the Sabbath – starting from sunset on Friday until sunset on Saturday.
When Sayiti was interviewed for the position of marketing manager it was stated that while it was normal working hours, he would be required to sometimes work over weekends.
He did not at the time raise any objections to the working hours, and he did not mention that he cannot work over weekends when needed.
Sun International said it accepted that he knew the hospitality industry meant working flexible hours.
About two months after he started working for the company, he disclosed that he is a member of the Seventh-Day Adventist Church and cannot work certain hours over weekends. This was after he was required to go to the annual tourist travel indaba in Durban.
Subsequently, he did not attend events which took place over the Sabbath. According to Sayiti, he did not experience any animosity regarding his religion.
Sun International said it tried to accommodate Sayiti.
At the incapacity hearing he was given the option of another job that would not require work on the Sabbath. He declined due to a decrease in salary.
Sayiti took the matter to the CCMA, where he complained that he was being discriminated against because of his religious beliefs. He, however, lost that battle and turned to the Labour Court, which ruled in his favour and ordered his reinstatement. This led to the appeal by Sun International.
Two judges on appeal ruled in favour of Sun International.
Judge Andre van Niekerk, in the majority judgment, remarked that the company has established that it took all reasonable steps under the circumstances to accommodate Sayiti’s on account of his religious beliefs. The reason for his dismissal was based on an inherent requirement of the particular job and thus not automatically unfair, he said.
Judge Portia Nkutha-Nkontwana, the third appeal judge, in a minority judgment, found the dismissal to be automatically unfair and found in her judgment that the company should compensate Sayiti with 24 months’ remuneration.
In the opening to her judgment, she remarked that one of the hallmarks of an enlightened, egalitarian society is the freedom to the right of religion.
“However, respect for religious rights is not a confined, absolute right like other rights. Freedom of religion exists in the context of other correspondingly important rights of others.
They coexist alongside statutory imperatives to eliminate unfair discrimination and to promote vibrant and diverse workplaces,” she said.
Pretoria News