Article written by Alisha Naik, Associate Designate, checked and released by Pierre van der Merwe, Partner at Schindlers Attorneys
11 October 2021
The purpose of employment policies (“policies“) is for employers to establish and communicate to employees acceptable, appropriate, ethical, and constructive conduct in the workplace. Well-written, clear policies, supported by effective disciplinary procedures, ensure sound governance, risk and compliance control measures, and help reduce the likelihood of misconduct, harassment, discrimination and unfair labour practices in the workplace. Employment policies thus serve as a set of rules for labour relations. But what if the policy is not reasonable, lawful or fair?
REASONABLENESS OF POLICIES
In this context, “reasonable” generally refers to appropriate, fair and equitable – taking into account the circumstances of each case. For example, can a policy regulate alcohol consumption? Many employers have a strict policy on alcohol consumption, even though alcohol consumption itself is not illegal. Policies of this nature are indeed reasonable, as they aim to protect the safety of employees – which cannot be ensured if an employee’s capacity is impaired because they are intoxicated or under the influence of alcohol in the workplace or while on duty.
Conversely, can a dress code that prohibits male correctional officers from wearing dreadlocks be considered appropriate? The short answer is no. Not only is this requirement unreasonable, but it is also unlawful because it violates the employees’ constitutional rights.
In Department of Correctional Services and another v POPCRU and others (107/12)  ZASCA 40 (28 March 2013), five correctional officers, all of whom wore dreadlocks for religious reasons, were suspended and ultimately dismissed for failing to comply with a written instruction to cut off their dreadlocks to comply with the Department’s dress code. The employees claimed that they had been unfairly discriminated against on the basis of their religion, belief and/or culture – a constitutionally protected right under section 15 of the Constitution of the Republic South Africa (“the Constitution“). The Labour Court found that the employees’ dismissals were automatically unfair and ordered, inter alia, their reinstatement.
On appeal, the Department argued that the objectives of the dress code were to achieve a neat and uniform appearance for correctional officers and that it served to improve safety, discipline and service delivery. The Labour Appeal Court (“LAC“) ruled in favour of the employees, finding that they had been discriminated against on the basis of religion, culture and gender. The LAC also found that the Department was aware of the requirements of the reasonable accommodation principle but chose to impose a blanket ban, notwithstanding the unreasonable and unfair impact on the rights and dignity of the employees and the Department’s constitutional and statutory duty to accommodate diversity. The Department unsuccessfully appealed to the Supreme Court of Appeal.
LEGALITY OF EMPLOYMENT POLICIES
It is important to note that while an employer can establish any reasonable policy, it must be lawful. This means that the policy must not override the law, discriminate unfairly or violate the constitutionally protected rights of employees as enshrined in the Bill of Rights in the Constitution.
The Constitutional Court reiterated the position regarding the legality of employment policies in the case of Hoffmann v South African Airways (2000) (11) BCLR 1211 (CCT 17/00). To briefly summarise the case: Mr. Hoffmann had applied to South African Airways (“SAA“) as a flight attendant. During the pre-employment HIV screening, Mr. Hoffmann tested positive for HIV, and therefore SAA had refused to hire Mr. Hoffmann, citing its employment policy that did not permit the employment of HIV-infected individuals in certain categories of jobs. The court a quo held that the employer’s policy, even if it constituted unfair discrimination, was justified within the meaning of section 36 of the Constitution. The court a quo also found that there were no other less restrictive means by which he could have achieved the purpose of promoting the health and safety of his passengers and crew.
Mr. Hoffmann appealed the judgement of the court a quo to Constitutional Court, and his appeal was allowed for the following reasons:
- While commercial exigency remains a legitimate consideration, one must be wary of allowing stereotyping and prejudice to be promoted under the guise of commercial interests;
- the Constitution has ushered in an era in which stereotyping and prejudice have no place;
- the employer’s refusal to consider the prospective employee’s recruitment accordingly violated the prospective employee’s right to equality guarantee.
The Constitutional Court ordered that SAA offer to employ Mr. Hoffmann as a cabin attendant provided that should Mr Hoffmann fail to accept the offer within thirty days from the date of the offer, the court order would lapse. In addition, SAA was ordered to pay part of Mr. Hoffman’s costs.
The Hoffman case demonstrates the importance of the legality of policies and striking a balance between the interests of the employer and the interests of the employee or potential employee in formulating policies.
FAIRNESS OF EMPLOYMENT POLICIES
“Fairness” can be defined as impartial and equitable treatment or conduct – free from favoritism or discrimination. In the present context, employment policies must be fair and applied consistently, without favouritism or discrimination. Fairness requires balancing the interests of all those who may be affected, which, in the employment context, requires consideration of the interests of employees, potential employees, the employer, and the interests of the community.
In the employment context, a prohibition on unfair discrimination is set out in both section 187(1)(f) of the Labour Relations Act 1995 (“LRA“) and section 6 of the Employment Equity Act 55 of 1998 (“EEA“). The LRA provides that discriminatory dismissals, i.e., those based on listed or arbitrary grounds, are automatically unfair. The EEA prohibits unfair discrimination in employment policies or practices based on listed or arbitrary grounds. In this regard, employers must ensure that considerations of fairness and the interests of justice prevail in their policies.
Based on the above, in order to minimise the risk of unfair labour practice claims, employers should strive to regularly review policies to ensure that policies remain reasonable, lawful, and fair. Employers and employees should be aware that appropriately worded employment policies are enforceable, and a violation of them may well be grounds for a fair dismissal. However, employers should take care to formulate policies that are reasonable, lawful and fair, as a violation of them may render the policy unenforceable notwithstanding its express terms.
Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein.
PIERRE VAN DER MERWE