Legal updates and opinions
News / News
All beliefs are created equal – or are they?
Did you know that your beliefs may be protected by labour laws? But how far do these protections extend – would you be protected for climate change denialism, veganism or being a flat earther?
Most South African citizens are well aware that their fundamental constitutional rights include the right of freedom of conscience, religion, thought, belief and opinion, and that these rights are valued so highly that ordinarily any infringement is a matter of constitutional law.
Labour laws are no exception. The Labour Relations Act recognises the application of these protected rights in the workplace by specifically creating a protected category of dismissal to ensure that if a person is fired because of their religion, belief, conscience, or political opinion, the dismissal is not just unfair, but automatically unfair, and the dismissed employee is entitled to double the usual compensation. The employee may also claim that he or she has been unfairly discriminated against in term of the Employment Equity Act, and seek relief under this piece of legislation.
The question then is raised about what kind of beliefs are worthy of this protection. There will, of course, be a fair consensus that religious beliefs such as those formal, traditional theological systems such as Christianity, Judaism, Hinduism, Buddhism and Islam, should be protected. But what of more fringe beliefs. As an extreme example, adherents to the newly created religion of Pastafarianism, in which proponents appeal to the creation of the universe (albeit as an admitted parody of other religions) by the Flying Spaghetti Monster (look it up, we’re not joking) would be unlikely to be protected in South Africa for their beliefs.
What of other belief systems, which may not necessarily be religious beliefs, such as pacifism, atheism, veganism, climate-change deniers, or believers in a flat earth?
The only case dealing with these kinds of issues in the workplace environment is a 2008 case, Zabala v Gold Reef City Casino, in which Zabala claimed that she was dismissed because she had expressed a negative opinion about her manager having an extra-marital affair. (It turns out she’d actually stolen a cell-phone, and was dismissed for this reason, so the court’s thoughts on her opinion on extra-marital affairs isn’t strictly binding on any future case law).
On this point though, the judge stated that Zabala’s opinion about extramarital affairs was a belief and a belief, whatever it may be about, falls within the specified grounds of discrimination. This may be too wide an approach to adopt, as any belief, such as that of Pastafarianism or that we live on a Flat-Earth, may then be used as a ground to claim unfair conduct by the employer.
In Europe at least, a more nuanced test, which takes into account whether the belief is sufficiently cogent, serious, cohesive and important, is applied. In South Africa, although employers must be aware that acting against an employee because of their beliefs or opinions should be approached with caution, not all beliefs are equally worthy of protection.
Latest News
As little as possible infringement? Is this the case when thinking about the right to privacy in South Africa?
by Ahmore Burger-Smidt, Director and Head of the Data Privacy practice A year back there would have been a massive [...]
Some more exemptions from Competition Law during the pandemic
Competition Law during the pandemic We have previously reported on the various block exemptions issued by the Minister of Trade, [...]
New directions, regulations and a Labour Court judgment bring clarity to the mining industry
by Chris Stevens, Director and Head of the Mining, Environmental & Resources practice; Kathleen Louw, Director; Bronwyn Parker, Senior Associate; [...]
The impact of COVID-19 on the use of common areas
by Fátima Rodrigues, Director and Head of the Property Law & Real Estate practice (Johannesburg) and Yatheen Ramnath, Candidate Attorney [...]
Cancellations and postponements of dividends
by Kevin Trudgeon, Director; Brian Price, Director; and Raquel Goncalves, Candidate Attorney The COVID-19 outbreak, the subsequent lockdown and other [...]
A jack of all trades or jacking the trades of others: A case of having your fingers burnt in too many pies
National Union of Metal Workers Of South Africa V Lufil Packaging (Isithebe) (A Division Of Bidvest Paperplus (Pty) Limited) (Unreported) [...]
