A decision of the Human Rights Review Tribunal (“the Tribunal”) earlier this year confirms that employers cannot discriminate against employees on the grounds of religion or any of the other grounds set out in section 21 of the Human Rights Act 1993 (“the Act”). The case of Nakarawa v Affco New Zealand Limited involved a causal employee who had worked a number of shifts before informing his employer he could not work overtime on Saturdays by reason of his religious beliefs. On receipt of this information Affco indicated his employment would come to an end and he left the following day.
The Employer argued that overtime was mandatory and his employment was not terminated, he was simply not offered further shifts, which under the terms of the casual employment agreement they were entitled to do. The Tribunal disagreed with the employer, and held that it is, and was in this case, unlawful for an employer to terminate employment based on an employee’s religious beliefs. It was on receipt of the information that the employee could not work on Saturdays that he was offered no further work and therefore a “material ingredient” to the making of this decision was the employee’s religious beliefs”.
The Tribunal held that an employer has a duty under the Act to accommodate the religious practices of employees, so long as any adjustment of the employer’s activities is not “unreasonably disruptive”. The mandatory duty to accommodate requires that the employer give good faith consideration to the obligation. The Act provides protection to a person’s religious practices and that protection must be proactively afforded. The Employer must make reasonable attempts to offer a real and acceptable solution which is in keeping with the employee’s rights, and the employer’s attempts to accommodate must be significant, sincere and serious.
An employer’s obligations in this regard become engaged as soon as the employer has actual or constructive notice of the religious practice. In the case of Nakarawa the Tribunal held that the employer had made no attempt whatsoever to accommodate or even discuss the issue with the employee as a result of which the employee was awarded damages for lost employment and compensation for hurt and humiliation.
It is therefore crucial as an employer that you know your obligations and the legal requirements of the Act. We are specialists in the area of employment law. If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co who normally advises you, or alternatively contact:
Kirsten Maclean
(03) 477 8870 or (09) 379 0055
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.