Nonprofit work has a long and deep history with faith-based organisations.  From the medieval hospitals established and run by monks through to major charities today such as Gift of the Givers, those who instigate and administer humanitarian, educational and other sorts of nonprofit endeavours are often motivated and driven by their religious piety, duty and love for humanity, whether following the call of Islam to Zakat, the Christian apostle James to ‘true religion’, or the Hindu or Buddhist Dana.

The organisation which is established may not have the practice of a particular faith as their central activity, but those who initially volunteer their time to serve and support it will be drawn from the same religious group. As the organisation typically expands and becomes more structured in its governance and operations (and more stably funded) people will generally be employed to work in it. 

It is at this stage that these organisations need to take note of the applicable constitutional rights and employment laws of South Africa.

In our Constitution the particularly relevant parts are:

• Section 15(1) of the Constitution which provides that all persons have the right to freedom of religion;

• Section 9(4) of the Constitution prohibits any person from unfairly discriminating against any other person on the ground of religion amongst others.

The Labour Relations Act 66 of 1995 (LRA) and Employment Equity Act 55 of 1998 (EEA) are the ruling employment laws in the country and -

• Section 187(1)(f) of the LRA provides that a dismissal of an employee because of an employer unfairly discriminating against them on the ground of religion is, inter alia, an automatically unfair dismissal; and
• Section 5(1) of the EEA states that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.

Section 6 of the EEA states that:

1. No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.
2. It is not unfair discrimination to—
   1. take affirmative action measures consistent with the purpose of this Act; or
   2. distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

An ‘employment practice’ includes a hiring policy and these sections prohibit unfair discrimination in the hiring process, during employment and at termination of employment. And this will include unfair discrimination on grounds of religion.

Faith-based organisations should ensure that, if any part of their policy on hiring (and firing) is connected to religious adherence, there is a rational connection between the faith and the work being done.

The ticklish question is whether an organisation founded by a particular faith may require that all present and future employees are adherents to that faith. And whether an employee who joins up while practising a particular faith may be dismissed (fairly) because they no longer part of that religion.

The case law on these provisions indicates that the question of whether dismissal (or discrimination or failure to hire) which is based upon adherence (or non-adherence) to a religion, is unfair depends on whether the religious practice is rationally connected to the performance of the job, ie whether the requirement:  

“[has] been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and [is] reasonably necessary to the accomplishment of that purpose.”

“In addition, the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.” (TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC) para 34.) 

Takeaways

Most of the case law so far has been about employees whose religious practices contradicted some norm of employment (a dress code, for example) or did not allow the employee to work on an expected day (as in the TDF case).  However, the same principles would apply to the absence of one or another type of religious practice or belief.  Faith-based organisations should ensure that, if any part of their policy on hiring (and firing) is connected to religious adherence, there is a rational connection between the faith and the work being done.

So, a person hired to give religious instruction or to lead religious ceremonies/meetings could fairly be required to belong to the relevant religion and to be a currently practising member of their local religious group. But if they are employed to perform financial or administrative work, or to carry our projects or field work which are not dependent on a belief, then the requirement that they be of a particular religion would, in all likelihood, be unfair discrimination.