scholarly journals The Employee's Right to Freedom of Religion versus the Employer's Workplace Needs: An Ongoing Battle: TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC)

2021 ◽  
Vol 24 ◽  
Author(s):  
Shamier Ebrahim
Keyword(s):  
Religious Community ◽  
The Other ◽  
Freedom Of Religion ◽  
Employment Equity ◽  
Labour Relations ◽  
Wrong Side ◽  
Workplace Needs ◽  
The Republic ◽  
The Right ◽  
Constitutional Protections

The right to religion is well protected in the Constitution of the Republic of South Africa, 1996 (the Constitution) as well as attendant legislation. Section 15(1) of the Constitution provides that all persons have the right to freedom of religion. Section 31(1) of the Constitution then goes on to state that persons who belong to a religious community, amongst others, may not be denied the right to practise their religion with other members of that community. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against any person directly or indirectly on several grounds, which include the ground of religion. Section 9(4) of the Constitution on the other hand prohibits any person from unfairly discriminating against any other person on the ground of religion, amongst others. These constitutional protections resonate in both the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. Despite these protections, the right to freedom of religion is still a contested subject in the workplace, inter alia. The contestation intensifies when the right to freedom of religion results in an employee not being able to comply with one or more of the employer's workplace needs. Employers' who do not understand the balance that has to be struck between the employee's right to freedom of religion and its workplace needs will often find themselves on the wrong side of our labour laws if they dismiss an employee without having due regard to the employee's religion. This is what transpired in TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC).

scholarly journals The Contest Between Religious Interests and Business Interests ‒ TFD Network Africa (Pty) Ltd v Faris (2019) 40 ILJ 326 (LAC)

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 961-973
Author(s):  
ME Manamela
Keyword(s):  
Maternity Leave ◽  
Common Law ◽  
Religious Community ◽  
Freedom Of Religion ◽  
Employment Policy ◽  
Labour Relations ◽  
The Republic ◽  
Labour Legislation ◽  
Labour Potential ◽  
The Right

The right to freedom of religion is one of the fundamental human rights. This is evident from several sections of the Constitution of the Republic of South Africa, 1996 (the Constitution), including sections 9, 15 and 31. Section 9(4) prohibits unfair discrimination (whether direct or indirect) against anyone on one or more of the grounds listed in section 9(3), which includes religion. Section 15(1) states that everyone has the right to freedom of conscience, religion, thought, belief and opinion, while section 31(1)(a) provides that persons belonging to a religious community may not be denied the right to practise their religion with other members of the community.In line with the Constitution, labour legislation such as the Labour Relations Act 66 of 1995 (LRA) and the Employment Equity Act 55 of 1998 (EEA) also protects this right. Section 187(1)(f) of the LRA provides that if an employee is discriminated against and is dismissed based on religion, among other grounds, such a dismissal will be deemed to be an automatically unfair dismissal. Section 6(1) of the EEA prohibits unfair discrimination, whether direct or indirect, in any employment policy or practice based on prohibited grounds such as religion. It is evident from all the above provisions that the right to freedom of religion is vital to people’s lives, including employees’ lives.Although an employee has the right to practise religion, he or she also has the common-law duty to render services or to put his or her labour potential at the disposal of the employer as agreed in terms of the contract of employment – except during the employee’s annual leave, sick leave and maternity leave.  An employee may therefore be in breach of this duty if he or she refuses to work or deserts his or her employment or absconds from his or her employment or is absent from work without permission. In addition to the above duty, employees have a duty to serve the employer’s interests and to act in good faith. Often, employees’ right to freedom of religion collides with their duty to render services and to serve the employer’s interests; employees present various reasons related to their religious practices for their failure to render services. As a result, employers are regularly required to be lenient and make efforts to accommodate employees’ religious beliefs in the workplace. At times, this becomes a burden to employers as they have to accommodate employees with diverse individual religious interests, but also ensure that their businesses remain operational. Religion remains one of the most contentious and problematic areas for employees and employers to deal with in the workplace.The discussion that follows evaluates the court’s finding in view of relevant constitutional provisions, labour law legislation and common law. It further considers the position under American law regarding religion and reasonable accommodation in the workplace. 

scholarly journals Acting on Behalf of Another Without Consent as a Source of the Right of Obligations in the Republic of Kosovo

2021 ◽  
Vol 10 (6) ◽  
pp. 295
Author(s):  
Sevdai Morina ◽  
Endri Papajorgji
Keyword(s):  
The Other ◽  
Legal Obligation ◽  
Legal Action ◽  
Property Value ◽  
Bodily Integrity ◽  
Mutual Help ◽  
The Subject ◽  
The Republic ◽  
The Right ◽  
Social Wealth

In life, it often happens that humans take different actions on different occasions to save man or his wealth. These actions can be taken when there is a need to protect the integrity of man and his wealth, both individual and social wealth. Man performs these actions morally and without any institutional obligation. Man does the action without consent in order to save one's life or another's wealth. There is a need for such an action, because everyone sometimes in certain cases needs mutual help. With these behaviors of people, it is seen that they do not take these actions out of legal obligation, but act and should act with the consciousness and conscience of the civilized man. People who do this are driven by the need for cooperation, humanity, existence at the expense of the other, namely society. A person performs this action by perpetrating the work of another without consent for any other person. Hence, they undertake some factual and legal action for the other, sacrificing something that can be the property value and their bodily integrity. Sometimes this action must be taken because there are actions that cannot be postponed, therefore someone should take an action in such situations even when uninvited. Consequently, the subject matter analyzed in this paper is the act of perpetration of the work of another without consent as a source of the right of obligations in the Republic of Kosovo.   Received: 6 October 2021 / Accepted: 1 November 2021 / Published: 5 November 2021

Part 1 Freedom of Religion or Belief, 1.3.1 Freedom to Worship

2016 ◽  
Author(s):  
Bielefeldt Heiner, Prof ◽  
Ghanea Nazila, Dr ◽  
Wiener Michael, Dr
Keyword(s):  
Public Debate ◽  
The Other ◽  
Freedom Of Religion ◽  
Individual Freedom ◽  
Dietary Practices ◽  
Education Services ◽  
The Individual ◽  
The Right

This chapter addresses issues concerning the individual freedom to worship. Given the crucial significance of worship for the understanding and practice of religion, the texts of some national constitutions reduce the right to freedom of religion or belief to the element of worship by replacing it with the term ‘freedom to worship’. However, this narrow or even exclusive emphasis on worship can become an excuse for marginalizing or simply ignoring other important aspects of freedom of religion or belief, such as running charity institutions, offering education services or participating in public debate. It is therefore advisable not to isolate the element of worship, but to see it in conjunction with the other elements of the right to manifest one’s religion or belief through observance, practice, and teaching. The chapter also discusses issues of interpretation such as the ceremonial use of plants and drugs, as well as ritual slaughter and observance of dietary practices.

Who Is Afraid of Religious Freedom? The Right to Freedom of Religion and Belief and Its Critics

2016 ◽  
Vol 11 (3) ◽  
pp. 224-249 ◽  
Author(s):  
Silvio Ferrari
Keyword(s):  
Religious Freedom ◽  
The Other ◽  
Freedom Of Religion ◽  
Specific Context ◽  
The One ◽  
The Right

This article answers the claim that it is impossible to implement the right to religious freedom in a coherent, non-discriminatory way. It relies on the notions of “embedded evenhandedness” and “particular universalities” to build a two-pronged approach to freedom of religion. On the one hand, this approach accepts that history and culture provide the particular framework within which the right of freedom of religion is embedded. On the other, it recognizes that the claim of evenhandedness that is inbuilt in this right can overcome the limitations of a specific context and open it to new ways to understand and implement the right itself. This tension between the universal dimension of the right to freedom of religion and its particular implementations allows affirming the possibility of religious freedoms, whose different manifestations are better protected by collecting them under the umbrella of the same legal category than by apportioning them between different rights.

scholarly journals Analisis Kritis terhadap Perjanjian Perkawinan dalam Putusan Mahkamah Konstitusi Nomor 69/PUU-XIII/2015

2018 ◽  
Vol 14 (4) ◽  
pp. 799
Author(s):  
Damian Agata Yuvens
Keyword(s):  
Impact Analysis ◽  
The Other ◽  
Main Issue ◽  
Constitutional Court ◽  
Legal Consideration ◽  
Other Hand ◽  
The Republic ◽  
The Right ◽  
Marital Agreement

Pengujian terhadap beberapa ketentuan dalam Undang-Undang Republik Indonesia Nomor 5 Tahun 1960 tentang Peraturan Dasar Pokok-Pokok Agraria dan Undang-Undang Republik Indonesia Nomor 1 Tahun 1974 tentang Perkawinan ditujukan untuk memastikan agar warga negara Indonesia yang menikah dengan warga negara asing bisa tetap memiliki hak atas tanah dengan titel Hak Milik maupun Hak Guna Bangunan. Hasil akhirnya, Mahkamah Konstitusi Republik Indonesia, melalui Putusan No. 69/PUU-XIII/2015, menolak sebagian permohonan yang diajukan dan memberikan tafsir sehubungan dengan perjanjian perkawinan, sehingga perjanjian perkawinan juga bisa dibuat selama dalam ikatan perkawinan. Namun demikian, terdapat masalah nyata dalam Pertimbangan Hukum yang disusun, yaitu falasi, kurangnya pertimbangan dan tidak adanya analisis dampak. Di sisi lain, penilaian yang dilakukan secara terpisah oleh Mahkamah Konstitusi terhadap objek yang diujikan menyebabkan tidak tampaknya perdebatan komprehensif mengenai isu pokok yang diujikan. Terlepas dari kekurangan tersebut, tak dapat pula disangkal bahwa Putusan No. 69/PUU-XIII/2015 memberikan alternatif jalan keluar.Review on some provisions in Law of the Republic of Indonesia Number 5 of 1960 concerning Basic Regulations on Agrarian Principles as well as Law of the Republic of Indonesia Number 1 of 1974 concerning Marriage were submitted in order to ensure that Indonesian citizen who marries foreign citizen could still hold land right with title of the Right of Ownership and the Right of Building. As a result, Constitutional Court of the Republic of Indonesia, through Decision No. 69/PUUXIII/2015, rejected part of the petition and provided interpretation in relation to marital agreement, so that marital agreement could be drafted during the marriage relation. Nevertheless, there are visible problems in the Legal Consideration, namely fallacy, lack of consideration and no impact analysis. On the other hand, assessment conducted separately by Constitutional Court of the Republic of Indonesia caused the invisibility of comprehensive debate on the main issue that is contested. Apart from the said shortcomings, it is undeniable that Decision No. 69/PUU-XIII/2015 provided alternative way out.

scholarly journals DISKURSUS PERKAWINAN BEDA AGAMA DI INDONESIA DALAM TINJAUAN UNIVERSALISME HAM DAN RELATIVISME BUDAYA

2021 ◽  
Vol 20 (1) ◽  
pp. 131
Author(s):  
Fitrawati Fitrawati
Keyword(s):  
Human Rights ◽  
The State ◽  
Universal Declaration ◽  
Cultural Relativism ◽  
The Other ◽  
Freedom Of Religion ◽  
Legal Research ◽  
Interfaith Marriage ◽  
Cultural Relativity ◽  
The Right

This paper tries to examine the right to freedom of interfaith marriage in Indonesia from the perspective of Human Rights Universalism and Cultural Relativism. The purpose of this paper is to explain how universalism and cultural relativity view interfaith marriage in Indonesia. This research is a normative legal research. This study uses a literature approach. The findings of this study indicate that interfaith marriage in Indonesia is still not well accepted and has always been controversial news in the community, even considered to have exceeded or violated the provisions of marriage, but there are still followers of different religions who decide to marry. In fact, many of them are smuggling laws so that their marriages are recognized by the state, namely by registering marriages abroad and then continuing the registration in Indonesia. Meanwhile, on the other hand, Indonesia already has a law on Marriage, namely, Article 2 paragraph 1. It is also contained in the article of the Universal Declaration of Human Rights, namely the right to freedom of marriage (article 16 UDHR) which includes the right to marry between religions (different religions), and the right to freedom of religion (article 18 UDHR) which includes the right to change religions. Meanwhile, in cultural realivism, it rejects everything that is universal.

scholarly journals Religious Freedom and the Limits of Propagation: Conversion in the Constituent Assembly of India

Religions ◽  
2019 ◽  
Vol 10 (3) ◽  
pp. 157
Author(s):  
Sarah Claerhout ◽  
Jakob De Roover
Keyword(s):  
Religious Freedom ◽  
The Other ◽  
Freedom Of Religion ◽  
Draft Article ◽  
Constituent Assembly ◽  
The One ◽  
The Right

In discussions about religious freedom in India, the country’s conflict regarding conversion plays a central role. The Constitution’s freedom of religion clause, Article 25, grants the right “freely to profess, practise and propagate religion,” but this has generated a dispute about the meaning of the right ‘to propagate’ and its relation to the freedom to convert. The recognition of this right is said to be the result of a key debate in the Constituent Assembly of India. To find out which ideas and arguments gave shape to this debate and the resulting religious freedom clause, we turn to the Assembly’s deliberations and come to a surprising conclusion: indeed, there was disagreement about conversion among the Assembly members, but this never took the form of a debate. Instead, there was a disconnect between the member’s concerns, objections, and comments concerning the draft article on the one hand, and the Assembly’s decision about the religious freedom clause on the other. If a key ‘debate’ took this form, what then could the ongoing dispute concerning conversion in India be about? We first examine some recent historiographical accounts of the Indian conflicts about conversion and proselytization. Then we develop a hypothesis that aims to make sense of this enduring conflict by identifying a blindness at its core: people reasoning against the background of Indian traditions see ‘propagation of religion’ as the human dissemination of tradition; this is incompatible with a religious conception where conversion and propagation of faith are seen in terms of God’s intervention. These two ways of seeing ‘propagation’ generate two conflicting experiences of the Indian dispute about religious freedom and conversion.

Freedom of Religion Under the Sudan Constitution and Laws

1982 ◽  
Vol 26 (2) ◽  
pp. 133-151 ◽  
Author(s):  
Akolda M. Tier
Keyword(s):  
Motion Pictures ◽  
The Other ◽  
Free Expression ◽  
Freedom Of Religion ◽  
Individual Freedom ◽  
Freedom Of Association ◽  
Freedom Of Choice ◽  
Common Purpose ◽  
The Common ◽  
The Right

The right to freedom of religion and belief is closely linked with the rights to free expression of opinion, to peaceable assembly and freedom of association. In particular, they share the common purpose of assuring to an individual freedom of choice. Moreover, to be effective, each normally requires the use of one or other of the means of dissemination of knowledge and information, which include newspapers, books, pamphlets, petitions, posters, radio, television and motion pictures. Likewise, to be effective, the rights to freedom of religion and free expression of opinion must be linked to freedom of association in the sense of the right to form and to join organisations for the advancement of particular views and interests. This is particularly true of cities and other densely populated areas. Indeed, the essential similarity between these rights was reflected in their embodiment in a single article in earlier Sudan constitutions. A consequence of these similarities is that the denial or infringement of any one of them has further ramifications on the other rights apparently left intact. Accordingly, the present study, while focusing on freedom of religion, will make brief excursions into the related rights of free expression of opinion, assembly and association. Before considering problems raised by freedom of religion, reference must first be made to its necessity.

scholarly journals Accommodating What Needn’t Be Special

2016 ◽  
Vol 10 (2) ◽  
pp. 319-340 ◽  
Author(s):  
George Letsas
Keyword(s):  
Human Rights ◽  
Religious Belief ◽  
Religious Beliefs ◽  
The Other ◽  
Religious Practices ◽  
Freedom Of Religion ◽  
Turn On ◽  
Other Hand ◽  
Religious Accommodation ◽  
The Right

Abstract Liberal debates on religious accommodation have so far focused on the nature of the interest upon which the right to freedom of religion is based. Liberals who oppose religious accommodation argue that there is nothing special about religious belief. Those who defend accommodation on the other hand seek to identify some property (such as conscience or deep commitments) that both religious and non-religious beliefs can share. The article seeks to develop an argument in favor of certain types of religious accommodation that is agnostic about the nature of religious belief and whether it is special in any sense. It argues that it is a mistake to think that the question of religious accommodation, as it arises in law, must necessarily turn on arguments about freedom of religion. The principle of fairness can justify legal duties to accommodate religious (and non-religious) practices, without the need to assess the character of the practice in question or the reasons for engaging in it. The article argues further that the principle of fairness can better explain why human rights courts uphold some claims for religious accommodation as reasonable, and not others.

scholarly journals On freedom of religion and belief in the Republic of Tajikistan

2016 ◽  
Vol 2 (19) ◽  
pp. 84-98
Author(s):  
Muatar Khaidarova
Keyword(s):  
Freedom Of Religion ◽  
Freedom Of Conscience ◽  
Administrative Control ◽  
The Past ◽  
Liberal Attitude ◽  
The Republic ◽  
The Right

Over the past 25 years in Tajikistan, attitudes toward religion and the right to freedom of conscience have changed from time to time - from a liberal attitude to this issue to a rather rigid administrative control. Currently, 99.4% of the population in Tajikistan are Muslims, represented mainly by Sunni Hanafi sense (96.6%) and Shi'ism of the Ismaili trend (2.8%). Only 0.6% of the population of Tajikistan refers to Christianity and other religions, or are atheists.

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