dreadlocks, sangomas and the burqa: culture and religion in the workplace prof b grant university of...

Dreadlocks, sangomas and the burqa: culture and religion in

the workplace

Prof B Grant

University of Kwazulu-Natal

I. Legislative Framework• (1) The Constitution Act 108/1996:- s9: prohibition of discrimination of grounds

of race, sex, gender, culture, religion, belief, etc

- s15: freedom of conscience, religion, belief, etc

- s30: right to language and cultural life

• (2) Labour Relations Act 66/1995

- s187 (1) (f): automatically unfair dismissal on grounds of race, sex, gender, religion, culture, etc

• (3) Employment Equity Act 55 of 1998

- s5: employer must take steps to eliminate unfair discrimination in the workplace

- s6: prohibition of discrimination of the grounds of race, sex, gender, religion, culture, etc

II. Limitations in employment

• nature of the relationship is a voluntary, commercial contract to provide personal services in exchange for money

• based on interaction with a wide range of person who might not share the religious or cultural beliefs

• employer is entitled to impose standards of behaviour where there is an economic rationale

• employer is entitled to impose standards of uniformity for reasons of safety, discipline or to identify its employees or its image

III. Reconciling these interests• employee has an interest in maintaining

individuality and the exercise rights, including the right not to be discriminated against

• employer has economic reasons for placing limitations of the exercise of individual freedom of religion, culture, opinion, etc

• Dlamini & Others v Green Four Security

- 4 security guards were dismissed after their refused to shave off their beards

- their reason for the refusal was that their belonged to Baptised Nazareth Group, which prevented them from shaving their beards

- claimed automatically unfair dismissal: unfair religious discrimination

- court found in favour of the Employer because:

(a) religious rule was not a fundamental tenet of their religion

(b) it is an inherent job requirement that guards be clean-shaven because they need to be neat for work

(c) work environment is similar to SANDF and SAPS – justifies clean-shaven rule

(d) employer is entitled to set uniform dress codes as a condition of employment

• Popcru & Others v Dept of Correctional Services & Another

- 5 employees were dismissed after their refuse to cut their dreadlocks in accordance with dress code

- 3 refused because it was part of their Rastafarian religion; 2 because of their culture as sangomas

- employer justified this instruction on the basis that it wanted to root out problems at the prison relating to:

*drug smuggling; assaults on wardens and high rate of absenteeism

* to reclaim discipline and respect of staff at prison

- court accepted that the dreadlocks were an important tenet of the Rastafarian religion and the other employees wore for cultural reasons

- the court found there was no discrimination on the basis of religion or culture because the instruction was issued to all male staff

- unfair discrimination occurred on the basis of gender, because female staff were not required to cut their dreadlocks

- case does not deal adequately with the issue if the religious and culture limitations at the work place

• SAGWATU obo Brookes v CNA t/a Edcon Pty Ltd

- manager was dismissed for range of offences, including discriminatory behaviour

- she had interviewed an applicant for work, but refused to employer her when the applicant indicated that she would need to wear her headscarf (burqa) to work

- CCMA found that it was not discriminatory to inquire about it because:

* it was company policy that a short headscarf may be worn

* the employer is entitled to employ applicants who will be able to abide by the uniform

IV. Issues to consider

(1) When do the economic interests of employer supersede the rights of the employees?

- when there is a threat to safety or rights of other employees or customers

- Nongqayi v Awesome Destination

* employee was successfully dismissed after she had various trance episodes at work and would throw herself on the ground

* dismissed for incapacity

- Pikoko v BD Fashionwear

* it was accepted that it is not unreasonable for an employer in fashion company to request employee to take off her beads when training to be a sangoma

- Alfred v Drie Riviere Kliniek

* accepted that the refusal by an employee to take off goat skins in order to scrub before surgery in vet clinic was ground for dismissal

- Luqhide v Real Landscapes

* sangoma employee was successfully dismissed after he insisted on chewing plant and spitting it out, some of it on his co-employees on the basis that his conduct offended co-employees

(2) When will the employer be required to reasonably accommodate the employee’s religious beliefs?

- Lucas v Engelbrecht SA (Pty) Ltd

* employee was dismissed after she refused to wear trousers because of her Christina beliefs not to wear men’s clothes

* employer justified the rule on the basis that there was an Occupational Safety Regulation which required staff not to wear `loosely fitting clothes’ near moving machinery

* dismissal was unfair because she had made an effort to wear heavy, denim narrow skirts

- Popcru case

* employees had agreed to keep their dreadlocks under a cap and tied up

- SAGWATU case

* employee could have worn short headscarf in required colour, etc

V. Conclusion- more effort needs to be made by employers to

accommodate the religions and cultural practices of employees

- employees need to consider the impact of their practices on the business of the employer