Working on the Weekend Like Usual

“One of the hallmarks of an enlightened egalitarian society is the right to freedom of religion.  However, respect for religious rights is not a confined absolute right.”^[1]These are the opening words of a recent Labour Appeal Court decision which provides insightful analysis and debate on the inherent requirement of a job as a defence to an automatically unfair dismissal claim. 

The Story Behind the Appeal

Sun International Management Limited employed Lucky Sayiti as Marketing Manager: East Africa and Southern African Development Community, a role he commenced on 16 March 2015. Mr Sayiti’s contract of employment stated:

“…normal hours of work will be 08h30 to 17h00 Mondays to Fridays, with an hour for lunch. However, due to the nature of the [employer’s] business, [the employee] will be required to work longer hours from time to time without additional compensation.”^[2]

Two months after commencing his employment, Mr Sayiti disclosed that he was a Seventh-day Adventist and that he could therefore not engage in work or attend work-related events on the Sabbath.^[3] Sun International attempted to accommodate Mr Sayiti by accommodating him from Sabbath work for 16 months.  Ms Beattie, the Group Sales and Marketing Manager: Africa, and Mr Sayiti’s line manager, would step in for him in most instances. 

Sun International contended that this eventually became untenable, as Ms Beattie began to face unbearable pressure as a result of having to step in for Mr Sayiti, especially as her responsibilities increased.  Therefore, in July 2016, Sun International initiated an incapacity inquiry into Mr Sayiti. The outcome of this inquiry was that Mr Sayiti could not perform as Marketing Manager because of the inherent requirements of the job.  The chairperson of the inquiry recommended that Mr Sayiti be offered an alternative position which would not require work on the Sabbath. 

Sun International then offered Mr Sayiti the position of Co-ordinator: International Sales.  Mr Sayiti rejected this offer, as he considered it unreasonable because it meant a near-45% salary reduction. Sun International subsequently terminated Mr Sayiti’s employment on 11 September 2024.  Mr Sayiti referred an automatically unfair dismissal dispute. 

The Labour Court upheld Mr Sayiti's claim that his dismissal was automatically unfair.  Sun International appealed to the LAC, which produced two interesting, conflicting judgments.

Majority

The majority of the LAC upheld the appeal of Sun International and ordered that Mr Sayiti’s dismissal was fair. 

The majority affirmed that the defence of an inherent requirement of the job^[4] obliges an employer to show, first, a rational link between the job requirement and a legitimate work-related purpose, and, secondly, that it is not possible to accommodate the employee without undue hardship or insurmountable operational difficulty.  An employer must satisfy the court that the inherent requirement it alleges is a genuine requirement and not a veneer for discrimination, the majority held. 

The majority found that on the evidence, attending and hosting events over the weekend was an inherent requirement of Mr Sayiti’s job as Marketing Manager.  Weekend work was a requirement rationally connected to the performance of the job of Marketing Manager and needed for the achievement of a legitimate, work-related purpose.

The majority highlighted evidence which showed that Sun International had taken reasonably available steps to accommodate Mr Sayiti.  After Mr Sayiti disclosed his inability to work during the Sabbath, Ms Beattie performed Mr Sayiti’s duties for 16 months until this became unbearable.  Sun International then offered alternative employment to Mr Sayiti at the rate applicable to the different position—which Mr Sayiti rejected.  Sun International had therefore done enough to reasonably accommodate Mr Sayiti, and his dismissal was not automatically unfair. 

Minority

The minority agreed with the Labour Court and found that Mr Sayiti’s dismissal was automatically unfair.  The minority accepted that Mr Sayiti’s weekend duties, including attending trade shows, constituted an inherent requirement of the job, thus finding that the Labour Court erred by finding otherwise. 

However, the minority was not persuaded that Sun International could not accommodate Mr Sayiti without imposing undue hardship on its business operations.  The minority found that, on the evidence, trade shows were annual events which were not always attended.  Additionally, there was no evidence that Sun International had explored less discriminatory options, such as having colleagues other than Ms Beattie stand in for Mr Sayiti.  Furthermore, even if accommodating Mr Sayiti placed significant strain on Ms Beattie, Sun International showed no evidence that this impacted its business operations.  “Worst still, to offer [Mr Sayiti] a position that meant an almost 50% salary reduction cannot constitute reasonable accommodation,” the minority proclaimed.^[5]

The minority also highlighted Mr Sayiti’s good performance track record as a factor which could not be ignored, and that “the inflexible application of a standard that compels the employee to choose between his convictions and his career where non-compliance would have little or no ramifications to the employer’s business cannot be countenanced.”^[6]

The minority would have awarded Mr Sayiti 24 months’ remuneration as compensation for his automatically unfair dismissal.

Conclusion

Notwithstanding the minority’s interesting dissenting view, in terms of the majority judgment, the dismissal of Mr Sayiti was found to be fair.  Sun International successfully showed that weekend work was an inherent requirement of the job of Marketing Manager, that it took reasonable steps to accommodate Mr Sayiti in view of his religious convictions, and that his dismissal was therefore not automatically unfair. 

This article was prepared by partner Ludwig Frahm-Arp and candidate attorney Benny Makoloane.