Recent Worklaw responses to subscriber helpline queries

Question:
We have just reviewed our uniform policy and one issue keeps coming up. It is phrased as follows: 'Traditional costume and garments worn to comply with religious requirements are not permitted under any circumstances'.

Is this legal? Can we require our employees not to wear any traditional item during working hours? Is this not tantamount to discrimination on religious grounds? What would your advice be, and can we phrase this any better?

Worklaw Response:

We think that there has to be a defensible business reason / operational requirement that forms the basis of such rules. For example, if it is necessary for reasons of branding, health and safety or the need for employee uniformity.

We suggest you read the November 2010 subscriber newsletter which has an article on this. For example, it discusses the case of Dlamini & others v Green Four Security [2006] 11 BLLR 1074 (LC) which deals with the policy regarding security guards having to shave their beards grown for religious reasons. It is also important to note that, in the school context, the Constitutional Court has upheld the right to wear a nose stud which was in breach of the uniform policy.

We suggest the following amended wording for your policy:
'Traditional costume and garments worn to comply with religious or cultural requirements are not permitted where these are in conflict with the organisation's business objectives or operational requirements.'

Absolom
 
I agree with Chillies comments. The fact that the employee has been cited as 2nd respondent doesnt mean he is obliged to take part. From my experience, the employee's case is usually the same as the employers, and it is agreed that the employer will represent both their interests.

posted on: Tuesday, February 21, 2012 - 9:21:45 AM
Chillies Mfeka
 
Hi Nice2ask,
I dont see a problem with that- the employee who
is the 2nd respondent may be an interested party
who can then decide whether to take part in the
proceedings, or just be represented by the 1st
respondent (the employer), or do nothing. In an
unfair promotion dispute, when the applicant is
challenging a particular promotion and claiming
he/she should have been promoted, it is correct to
join the appointed person, so that person is then
a party to the proceedings. Otherwise that person
is not bound by the outcome.

posted on: Tuesday, February 21, 2012 - 8:26:35 AM
Nice2Ask
 
Please can you advise on an applicant applying to the CCMA to have an employee of the employer who is the 1st respondent as a second respondent in an ULP allegation. Is it procedural that such an application is referred to the CCMA and the employer but not the employee who is cited as the second respondent. Does that employee is still lawfully expected to attend the CCMA proceddings. Regards

posted on: Tuesday, February 21, 2012 - 8:13:45 AM
Mandla
 
I would have thought employers have more important things to worry about than what employees wear to work

posted on: Wednesday, September 14, 2011 - 12:21:06 PM
Chillies Mfeka
 
Employers dont have absolute rights Charlie - like everything else in labour law, they are constrained by fairness. In that sense, employees also have the right to determine what they wear to work.

posted on: Thursday, September 08, 2011 - 8:21:26 AM
 
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