THE RIGHT TO PRACTICE CULTURAL AND RELIGIOUS BELIEFS IN THE WORKPLACE – A DOUBLE-EDGED SWORD Department of Correctional Services v Popcru (107/12) [2013] ZASCA 40

Abstract

In modern society, employees face a dilemma regarding the extent to which they may practise their cultural and religious beliefs in the workplace. This dilemma is often as a result of the tension between the employee’s rights to practise his religious or cultural beliefs and the inherent requirements of the job. The employee’s right to practise his/her (hereinafter “his” will include “her”) religion or culture stems from sections 15, 30 and 31 of the Constitution of the Republic of South Africa, 1996, which affords everyone the right to practise beliefs. Section 9(3)–(4) of the Constitution prohibits unfair discrimination based on, inter alia, religion and culture.
The constitutional rights to freedom of religion and culture are not absolute and may be limited in terms of section 36 of the Constitution. For instance, in Prince v President, Cape Law Society (2002 (2) SA 794 (CC) hereinafter “Prince”), the Constitutional Court remarked that the “failure to make provision for an exemption in respect of the possession and use of cannabis by Rastafari is thus reasonable and justifiable under our Constitution”. In the workplace, the right to practise religious and cultural beliefs is given effect to by section 187(1)(f) of the Labour Relations Act 66 of 1995, which regards a dismissal on the grounds of religion and culture as an automatically unfair dismissal, and section 6(1) of the Employment Equity Act 55 of 1998, which prohibits discrimination based on religion and culture in the workplace.
These protections too are not absolute, as the employer may in both instances justify the discrimination on the basis of the inherent requirements of the job. In Dlamini v Green Four Security ((2006) 27 ILJ 2098 (LC) hereinafter “Dlamini”), the Labour Court held that even though employees had the right to practise their religious beliefs, a balance had to be struck between the competing interests of their religious beliefs and the countervailing commercial concerns of the workplace. It stated that a workplace rule could be justified if it was an inherent requirement of the job. Workplace rules in the form of dress codes often have an adverse impact on an employee’s right to practise his religious/cultural beliefs, if formulated and enforced without the above constitutional and labour-law provisions in mind. 
This is what transpired in Department of Correctional Services v POPCRU ((107/12) [2013] ZASCA 40 hereinafter “POPCRU”). The Department had a dress code which prohibited males from wearing dreadlocks. This prohibition did not apply to females. The respondent male persons refused to cut their dreadlocks, which they wore according to their sincerely held religious and cultural beliefs. This led to their dismissal.
The decision of POPCRU is worthy of note, as the Supreme Court of Appeal specifically dealt with a dress code which did not recognize the constitutional rights of employees to their religious and cultural beliefs. There are important lessons to be learnt from this case for other governmental departments, as well as the private sector, with regard to the formulation and enforcement of a dress code in the workplace.
Firstly, the facts, arguments and judgment will be stated briefly. Secondly, this note will evaluate the right to religion/culture within the workplace and provide a brief perspective on the right to religion within the American workplace. Lastly, this note will conclude by providing the way forward for the exercise of religious and cultural beliefs within the workplace.