The Employment and Labour Relations Court has ruled that employees also enjoy the right to freedom of worship and it cannot be curtailed without just cause. In Scoline vs Healthink Matcare Ltd t/a Nairobi Women Hospital Cause No. 1620/2018 eKLR, the employee was terminated on grounds of gross misconduct for failure to attend a budget approval meeting that had been scheduled for 24th February 2018 (a Saturday), contrary to the employer’s express instructions to attend.
According to the employee, she had been employed in April 2010 as an internal auditor, and she rose through the ranks to the position of Hospital Manager, a position she held at the point of losing her job. She was a practicing Seventh-Day Adventist (SDA), a well-known fact to her employer. As an SDA, Saturdays are considered worship days; consequently, they do not work on this day. She asked her employer to excuse her from work on Saturdays and indicated her availability to work on Sundays instead since the institution worked for seven days a week. The employer asked her to work on the first Saturday of the month and commit the remaining Saturdays to her worship. This was the agreement in August 2016.
On 21st February, 2018, the company held a budget approval meeting where the budget for the Hurlingham branch failed to pass. The branch was then asked to make necessary adjustments and present the revised budget on 24th February 2018, a Saturday. The Employee stated that she retreated with her team and revised the budget statement, and she instructed one of her team members to present it on her behalf at the meeting on 24th February 2018. She ensured that the budget document was appropriately revised along the lines proposed by the budget approval committee, and all that remained was the presentation of the final script on 24th February 2018.
She wrote an email to the Management, asking to be excused from the meeting scheduled for Saturday 24th February 2018 as it coincided with her worship day, and she had scheduled church activities on the same day. She further sent a text message to a member of the management on the same. She claimed that her request to be excused from the meeting was declined. The refusal put her in the unfortunate position where she had to choose between her religion and work. She chose to respect the worship day and thus failed to turn up for the meeting. She was then terminated on account of gross misconduct for failing to attend the budget meeting.
On its part, the employer acknowledged the fact that the employee was an SDA and in fact, it had put in place a schedule which allowed the Claimant time off a few Saturdays every month to enable her to attend to her worship. However, the employer stated that the employee’s right to worship is not absolute. It has to be practiced reasonably to accommodate other needs whenever they arise. In this case, the budget-making process was a critical activity that happened once a year, and since she was the branch manager, she was required to attend the meeting. It was not open to her to delegate such a critical function to another team member.
Additionally, the employer stated that the reason the budget activity was pushed to 24th February 2018 was because of the failure of the Employee to present an acceptable budget in the first instance. This failure resulted in the matter being revisited severally. Furthermore, she was present when the date of 24th February was proposed, and she did not object or propose an alternative date. In any case, the deadline date for the budget process was 28th February 2018. On the email and text by the employee, it was the Employer’s position that the Employee did not seek permission to be absent from the meeting. All that she did was send an email indicating that she would not be able to attend the session. The email was not a request for permission but a mere statement about her intended absence.
The Employer’s position was that the decision to terminate the Claimant’s contract was not due to her religious beliefs but her failure to heed work instructions and deliver on her mandate.
Was the Employee lawfully terminated?
The Court began by noting that though the employer stated that the dispute had nothing to do with the employee’s religion, the evidence on the record indicated that this issue was at the heart of the problem.
In Kenya, Article 32 of the Constitution guarantees every individual freedom of conscience, religion, belief and opinion. Article 32(4) provides that:-
‘’A person shall not be compelled to act or engage in any act that is contrary to the person’s belief or religion.’’
This right is not absolute and sometimes, it may be limited. However, limitations to these rights can only be imposed in the manner that is contemplated in law. Under Article 24 of the Constitution, no right in the Bill of Rights can be limited except by law. Even then, the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
The Court rejected the Employer’s argument and found that it was always aware that the employee was a Seventh-Day Adventist. It had asked her to report to work on the first Saturday as a compromise. Therefore, when they set the budget meeting for Saturday 24th February, 2018 they were fully aware of the fact that this was her day of worship, protected under the constitution. It was absurd to expect her to seek permission to be excused from the meeting when the arrangement they had already provided for her to be absent on that day.
With regard to her conduct, the Court found that “in recognition of the importance of the budget making process and the meeting of 24th February 2018, she ensured that the budget paper was revised and made ready for presentation come the day of the meeting. She also testified that she made adequate arrangements for a team member from her committee to attend the session and present the budget on her behalf. The Claimant also gave evidence that there was no regulation that barred her from delegating the function of presenting the revised budget paper to one of her team members to present it on the material day. Indeed, there was evidence that on 24th February 2018 the paper was presented and approved.”
On the claim that, as the Manager, she ought to have been the one to present the budget, the Court began by recognizing that budget-making for an institution is critical and requires close supervision by the team leaders. However, it faulted the rigidity that the Employer had toward the process. The Employer did not produce any evidence to support its position on the budget presentation procedure. There was no evidence that the regulations barred budget team leaders from delegating this function to their team members.
In the end, the Court held that “The insistence by the committee that only the Claimant and nobody else presents the budget statement at the session even when it was clear that this would infringe on the Claimant’s freedom of religion is disturbing. As indicated earlier article 32 (4) of the Constitution forbids anyone from forcing another to act in a manner that is contrary to his religious beliefs. To require the Claimant to work on Saturday despite the fact that Seventh Day Adventists (to which the Claimant belongs) recognize this day as a worship day was in contravention of the Constitution... The Respondent had a duty to respect and uphold the Claimant’s right to worship… The evidence on record leaves me with little doubt that the Claimant had been subjected to unnecessary hardship at the workplace because of her religious beliefs. Her faith requires her to observe the Sabbath every Saturday. Yet there is evidence that the Respondent made every effort to push the Claimant into compromising on this requirement. That is how she was eventually pushed into working on one Saturday every month despite the fact that her faith does not permit it. Instead of protecting the Claimant’s right of worship as obligated by the Constitution, the Respondent was infringing on it in order to promote its business interests.”
The Court also faulted the Employer for having a double standard approach that favored employees who attended to their religious activities on Sunday. On this, the Judge held “The Claimant states that she was ready at all times to work on Sunday since the hospital runs seven days a week. Why the Respondent could not accommodate this arrangement and move the Claimant’s rest day to Saturday to coincide with her worship day so that she works on Sunday remains a mystery. It is clear however that Sunday was left undisturbed for the other employees who consider it as their worship day. Indeed, the Respondent’s witness confirmed that Sunday was their rest day. Only frontline members of staff were required to be on duty. This evidence leaves me with no doubt that the Respondent’s conduct infringed on the Claimant’s freedom of religion. The fact that the Respondent would fail to allow the Claimant to be off duty all Saturdays despite knowledge that this was the Claimant’s worship day was clearly discriminatory treatment against the Claimant.”
The Court has provided guidance to employers that when dealing with disciplinary issues touching on employees, they have to be keen to ensure that they are not violating constitutional rights. “Importantly, the Constitution obligates the Respondent as the employer and duty bearer to respect and uphold the Claimant’s freedom of religion. A duty bearer cannot be said to have established a valid reason to terminate an employee’s contract of service if all that is shown is an attempt to impede the employee’s enjoyment of a constitutional right. Consequently, it is clear to me that the Respondent has failed to establish that it had a valid reason to terminate the Claimant’s contract of service.” The Court awarded her the maximum compensation of 12 months' salary for unfair termination.
Conclusion
This decision highlights how different rights intersect in the workplace. Though the freedom of religion is not absolute, the Employer is obliged to ensure that any limitation of that right is justified under the law and for good reason. For employees, it is important to ensure that you discuss any challenges that may affect your availability to work with your employer. Any agreement should be recorded as it will make a reference point if a disagreement arises. While religious freedom is paramount, the employee is also under a duty to show that they took reasonable steps to meet their obligations at work and that they did not abandon their duties, leaving the employer disadvantaged.
Overall, the employment relationship is one of mutual understanding, and the parties should ensure that they engage in a lot of dialogue to resolve any issues that may arise. Many of these challenges can be resolved by putting in place proper policies that guide decision-making and processes in the workplace.
To consult further on this and other employment matters, send us an email on legal@jnadvocates.com
The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
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