HR - Religious Discrimination - Part 2

ARTICLE 70

Religious Discrimination – Part 2

By Nikki Viljoen of Viljoen Consulting CC - July 2011

As promised here is the story version of what happened at the CCMA. Let’s bring out the protagonists.

Mike owns a very busy little gym in a quiet suburb and he has several body builder type staff working for him as personal trainers. Patrons are not encouraged to work out on their own, but are allocated their own personal trainer(s) to assist them with getting the best out of a workout. Patrons are then encouraged to make use of the gym’s masseurs, who are all properly trained in working with sports injuries.

As part of the branding, all staff are required to wear uniforms – the males are required to be clean shaven, with short hair (for hygiene purposes) and the females are required to wear their hair (specifically long hair) up in a ponytail and away from their faces. When in the indoor heated pool, all staff are required to wear swimming caps, again for hygiene purposes and to minimize the amount of hair fallout.

Mike’s business is expanding with more and more sports patrons coming to his gym to receive expert training and he has had to increase the number of personal trainers and masseurs. Mike’s letter of appointment specifies that the gym is open 7 days a week and the hair and hygiene requirements and he is careful to explain the reasons for the requirements at the interviews to ensure that both male and female staff are aware of the requirements and that they agree to them up front.

Everything goes along splendidly for several weeks and then he notices that several of the male staff are not shaving regularly. Mike calls a staff meeting and reiterates the requirements and instructs all the male staff to come to work ‘clean shaven’ on a daily basis. Mike further states that staff members who do not properly portray the image of the gym and the brand will be sent home to sort out what is required, at their own cost and without pay for the time wasted.

The following day, several of the staff again came to work unshaved and when Mike instructed them to go home and shave, they refused on religious grounds. They explained to Mike that they belonged to the Nazarene religion and that this religion forbade them to shave or even trim their beards. All of them were instructed to attend individual disciplinary hearings and all of them were dismissed.

Of course all of them went off to the CCMA and they claimed that their dismissal was automatically unfair as it was based on their religion.

Mike stood his ground and stated that:-
• Apart from the fact that beards made personal trainers and masseurs look dirty and untidy, all of these employees had been briefed on the requirements of being clean shaven as this was a hygiene requirement as well as part of the branding and therefore image of the company.
• All of the employees had arrived for the interview, clean shaven, they had signed their letters of appointment, thereby contractually agreeing to be clean shaven and
• For the first couple of week’s they had all come to work clean shaven, with no problem at all.
• At no time, until they all refused to shave, had any of them advised Mike that they were of a religion that forbade them being ‘clean shaven’. Clearly Mike was perplexed by this development.

The Court decided in Mike’s favour based on the following facts:
• There were several issues with this particular religion that were forbidden, yet the staff had transgressed on all of them, such as but not limited to: - the employees worked on a Sunday (and had never refused to do so) despite the fact that they were forbidden to do so in terms of their faith.
• The staff had arrived for their interviews clean shaven and had remained that way for several weeks despite the fact that they were forbidden to do so in terms of their faith. These two issues indicated that the church was ‘flexible’ in the application of these rules.
• The staff could not show that they would have to ‘suffer a harsh penance’ for breaching the rule of not shaving.
• It was evident that these employees were selective in their choice of which religious laws and rules they would follow and which they wouldn’t.
• The fact that Mike was very consistent in applying the rules of ‘clean shaven’ male faces etc evidenced that these staff members had not been singled out on the basis of their religion, but rather on their non-adherence to laid down company procedures that had been previously and meticulously followed, by these very same employees.
• Grooming and hygiene was an important and integral factor in the running of a private gym.

Be warned though, just because Mike won this case , doesn’t mean that employers will always win cases based on ‘unfair discrimination’ relating to religion and beliefs – each case should be looked at in terms of it’s own merits and it is advisable to employ the services of a HR/IR (human resources/industrial relations) expert when in doubt.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za