Posted on: Jun 19, 2014

An employee whose religion required him to observe the Sabbath (in this case, from sunset Friday to sunset Saturday) was successful in the Human Rights Review Tribunal in his case of religious discrimination. He had obtained a job at AFFCO’s meatworks, being asked merely if he was available for overtime. In similar employment previously, overtime had been voluntary and the employee had been able to fit it around his Sabbath observance. So, when asked by AFFCO, he had merely answered in the affirmative.

When it became obvious that the employee would be required to work on the Sabbath — in spite of specifying that he was only available for day work, he had been assigned to nights — he raised it with his supervisor and his manager, who told him that doing overtime involved Saturday work and that, if he couldn’t perform it, he did not meet AFFCO’s needs and should leave.

The Tribunal concluded that religious belief was a material ingredient in the making of the decision to treat the employee the way he was treated and that the appropriate comparator was the person (or persons) in exactly the same circumstances as the employee but without the feature of holding a religious belief requiring observance of the Sabbath. There was unlawful discrimination.

The Tribunal considered that AFFCO had not discharged its obligation under s 28(3) of the Human Rights Act 1993 to accommodate the employee’s religious practice. The entire focus of AFFCO and its managers had been on the interests of the company without regard for the prohibition against discrimination and the requirement to accommodate religious practice, unless this would result in unreasonable disruption.

The cost to AFFCO of these errors was substantial: about $12,000 damages for loss of benefit (wages); $15,000 damages for humiliation, loss of dignity and injury to feelings; and a requirement for training for management on their human rights responsibilities.

Nakarawa v AFFCO New Zealand Ltd (2014) 10 NZELC


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