Leave to appeal – what to do when you have to work on the chaggim

We live in a constitutional democracy that prizes freedom of religion, but South Africa’s labour law doesn’t regulate leave for religious holidays. Where does this leave observant Jews who want to take time off over chaggim and Shabbat?

“I work in the education sector for a corporate,” says a Johannesburg woman speaking on condition of anonymity. “My CV states that I’m Jewish. During the interview process, I said I was an Orthodox Jew and I observed the holidays. I was told it wasn’t a problem. My mistake was that I took this at face value and didn’t get them to put it in writing.

“Pesach came around, and I informed them that I wouldn’t be in for two days at the start, and two at the end. They seemed fine about it until my payslip came, and I was given unpaid leave for four days. When I queried it, I was told that it was a Christian-ethos school, and if I wanted the Jewish holidays, I should work at a Jewish school. There was no policy for religious leave.”

Indeed, South African labour law says that if an employee wants to take leave for religious holidays other than an official public holiday, they must take paid annual leave or unpaid leave. Any paid annual leave taken is deductible from the employee’s annual leave entitlement.

“I’m chairperson of the diversity committee now, so it’s something I fight all the time,” says the woman. “It’s something they’re ‘looking into’ but from a financial perspective, it’s a lot to take unpaid leave every time there’s a chag, so I take two days at the start of Pesach and two days for Rosh Hashanah and Yom Kippur. For the rest, I suck it up and go in. It leaves me feeling resentful and angry, especially since I feel I give way more than most staff time-wise to the school. I do, however, refuse to do anything on a Saturday, so it’s left me doing the bare minimum.

“From a diversity perspective, the school can’t claim to be inclusive and progressive if it doesn’t acknowledge and respect religious practice,” she says. “In my case, it’s hard to fight as it’s just me – I’m the only Jew now in a staff of more than 100 people. I’m looking for another job, but I’ve just had my second baby so [the search] has gone on the back burner. My sister is at Investec and if I look at how it’s so accommodating with religious leave and how its employees go the extra mile, [it’s clear] an environment that’s inclusive is definitely more fruitful.”

Labour lawyer and Member of Parliament Michael Bagraim says there’s no specific labour law for religious holidays. “The issue is a perennial one, and I’m often phoned at the last minute about a disciplinary hearing,” Bagraim says. “Often it’s actually the fault of the employee who didn’t tell the company upfront. On every single Jewish case I’ve worked on, the employee didn’t come forward [about their religious needs] at any stage.”

He remembers one exception about 20 years ago, when a Jewish person applied for a job and stated that they would need to take leave on Shabbat and the chaggim, and the employer refused to hire them on that basis. This case was taken to the South African Jewish Board of Deputies (SAJBD), and resolved. He also remembers a case three decades ago of a woman applying for a job and the company saying that it didn’t hire Jews because they have too many religious holidays, even though she herself wasn’t observant. She was disgusted, and chose not to pursue it further.

Bagraim says that if such cases occur, they can be dealt with legally. But he points out that the potential employee needs to be clear about their observance, even when applying for a job. He also says human resources departments should ensure that this is clarified during the interview process.

“I encourage everyone to put their religion in the application to be employed, and to outline their needs at the first interview,” Bagraim says.

“There have been numerous court cases on this and arbitration awards,” he says. “Normally, I put it into letters of appointment and contracts of employment. You would normally apply in terms of your annual leave policy. It must be at least one week prior or three weeks prior if the leave is for two or more days. If you have used up all your leave, you would take it as unpaid leave.

“My experience has been that many employers deal with it fairly and properly, especially if they are told long in advance,” he says. “There have been many disputes when employees suddenly become religious or change religion without informing the employer. The reality is that employees need to be upfront and try to negotiate this to the best of their ability.”

At the same time, “No one should be forced to work on chaggim, especially if they’re observant. It takes two to get into an agreement, and therefore it doesn’t help to make demands at the last minute. I’ve been involved in many cases regarding discrimination for people wanting to take holidays, not only Jewish, but in particular Jehovah’s Witnesses, who don’t work on Saturdays.”

Asked what an employee should do if they are forced to work on a chag or Shabbos, Bagraim says, “If the company has been told beforehand about your religious beliefs and it has given permission in the past, you can raise an internal grievance with the company in terms of its grievance policy. If this isn’t resolved, it could be taken either to the Commission for Conciliation, Mediation, and Arbitration, or Equality Court. The Equality Court is there to protect religious and cultural rights.”

SAJBD associate director David Saks says, “Employees have the right to take annual leave for religious holidays. It’s incumbent on them to give their employers sufficient advance notice. When problems arise, the SAJBD will approach the relevant employer to explain how Jewish religious law prohibits working on certain festive days and this is usually sufficient to resolve the situation.”