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Publisher
28-01-2011, 13:12
By: Johanette Rheeder
(JR Attorneys)

The issue of religious and racial discrimination and the test for discrimination was investigated in POPCRU & others v Department of Correctional Services & another (2010) 19 LC 6.12.2 and [2010] 10 BLLR 1067 (LC). The five applicant employees, all male officers at Pollsmoor Prison, Cape Town, were dismissed after they refused to obey the new commanding officer’s instruction to cut off their dreadlocks.

Three of the five employees claimed they wore dreadlocks because they adhered to the Rastafarian faith, and the other two said they did so for cultural reasons. They claimed that their dismissals were automatically unfair because they had been discriminated against on the basis of their religion, conscience, belief and/or gender. The Department contended that it had merely sought to enforce the regulation dress code, strict compliance with which was necessary to maintain discipline.

The employees had not been discriminated against because the dress code applied to all. Moreover, the employees’ dreadlocks made them “soft targets” for prisoners, because it was widely known that dagga smoking was a tenet of the Rastafarian faith.

The employees relied on the provisions of both the LRA and of the Employment Equity Act 55 of 1998. Under both Acts, the applicants had to prove that they were victims of discrimination. The employer must then prove that the discrimination was fair. The Court accepted on the evidence that all five applicants kept a dreadlock hair style because of their religious, Rastafarianism, and cultural beliefs.

The Court investigated various authorities on discrimination. In this particular case, the employees were unsuccessful in proving that there is a causal link between the dismissal and their belief. Factual causation, that is a belief in religious and cultural practices has not been proved to have been a prerequisite reason for the dismissal of the applicants.

They specifically failed to rely on religion when the rule was communicated and enforced. The purpose sought to be achieved by the employer respondent was the restoration and maintenance of discipline which was intended to improve security measures in prison.

It was common cause that the instruction of the second respondent to have dreadlocks cut was but one of the many other instructions he had issued to improve the working environment in prison. As already found, the attention of the second respondent was never drawn to the effect his instruction would have on their beliefs so that he would have had to apply his mind to it. What matters is that his attention should have been drawn to their beliefs and he was not.

The court found that in relation to the extent to which the rights or interests of the victim of the discrimination have been affected, it needs to be said that the applicants had a strong faith in the practice which was the basis for the keeping of their dreadlocks. The right to practice their faith was adversely affected and their dignity was no doubt impugned.

The applicants had a right to their faith. In the court’s view, they erred by failing to assert that right. The consequence is that the practice by the employer, through the instruction issued by the manager was justifiable and reasonable in the circumstances. The presumption of unfairness has therefore been negated by irrefutable evidence. It has to be borne in mind that the existence of a right is one thing and the exercise thereof is another. Accordingly, it had not been shown that the respondents indirectly discriminated against the applicant employees.

On the gender discrimination issue it was accepted that the female officials were permitted to wear dreadlocks and that it was never made clear why the biological differences between men and women had to justify discriminating among them.

The biological differences between Blacks and Whites would never be an acceptable basis for racial discrimination which constitutes the very said past of this country. Gender based discrimination in fact forms a listed ground on the basis of which dismissal would be automatically unfair both in terms of section 187(1)(f) of the Act and section 6 of the EEA. Both of these sections must be seen against the background of the provisions of section 9 under the Bill of Rights of the Constitution 108 of 1996.

Accordingly, the applicants have succeeded in proving that the respondents did discriminate against them on the basis of gender. The respondents have on the other side not succeeded in rebutting the presumption on the unfairness of the instruction issued by the second respondent which was a precursor to the dismissal of the five applicants. It has therefore been shown that the dismissal of each of the five applicants on the basis of gender was automatically unfair.

In Dlamini & others v Green Four Security (2006) 15 LC 8.34.1. A number of security guards were dismissed because they refused to shave or even trim their beards. Their argument was that it was against their religious conviction to do so. They claimed that their dismissals were automatically unfair because they were dismissed on discriminatory grounds. They claimed religious discrimination. The employer had implemented a policy in terms of which all employees were to be clean-shaven, and the employees said that this rule did not exist when they started working for the employer.

The Court stated that generally, untrimmed beards are untidy. But there was more at stake:

“[63] . . . . Conflict in the workplace arises as much from perception as from fact. The issue at stake here is the validity of the rule and its application. An employer is entitled to set a uniform dress code as a condition of employment. Compliance with a dress code can be compulsory for practical reasons related to the nature of the job, such as wearing of safety gear, or for purposes of promoting an image or brand. In this case the rule against wearing beards was driven by the practical an inherent need to be neat, to look like security guards and to project the respondent as a security company with a distinctive image. On the first applicant’s own version, he was nicknamed ‘fundise’ because his beard make him look like a priest. That is not consistent with the image that the respondent sought to project.”

The Court concluded that the rule that employees were to be clean-shaven was an inherent requirement of the job and that it was therefore a justified rule. The final conclusion to which the Court comes was that the applicant employees were not discriminated against and that their dismissals were not unfair.

It is clear from these decisions that an employer can still lay down rules regarding appearance and dress, and the Labour Court will be relatively reluctant to interfere unless there is clear discriminatory conduct by the employer or if the rule is applied inconsistently in respect of men and women or another discriminatory reason. Employees who claim religious convictions must prove the religious foundations on which their arguments are based and that they are genuinely belonging to and following the religion and to prove that there was a causal link between their religious beliefs and what the employer did.

MarkCorke
28-01-2011, 13:43
Loopholes for those who know.

Nikki
29-01-2011, 07:08
Loopholes for those who know.

There's always a loophole somewhere Mark