Religious discrimination in the South African workplace: Regulated regimes and flexible adjudication
Authors Radley Henrico
Affiliations: Senior Lecturer, Department of Public and Procedural Law, University of Johannesburg
Source: Industrial Law Journal, Volume 37 Issue 2, 2016, p. 847 – 864
The inherently tenuous relationship between employee and employer can be aggravated when religious discrimination arises in the workplace. This form of discrimination continues to constitute an important part of our equality jurisprudence. The South African legal system has in place a statutory scheme which strongly underpins fundamental values and principles enshrined in the Constitution guaranteeing the right to religious freedom. It is a regulated system ensuring religious freedom in a secular society workplace subject to reasonable limitations. These regulations must be compared with the more flexible ‘context-sensitive’ manner in which our courts adjudicate religious workplace disputes. The uniqueness of our courts not employing a ‘formal’ or ‘universal’ test, but rather a ‘context-sensitive’ approach, aligns itself with a transformative constitutional notion in so far as the judgments seek to develop a jurisprudence in which diverse interests are considered and accommodated, thus emphasising a change to a more informed adjudicative process. Such an approach also translates into certainty as to how future cases are likely to be adjudicated. This certainty is to be welcomed since it is an essential ingredient of the rule of law upon which our democracy relies.