By Graeme McFarlane

Good employers are concerned about respecting the Human Rights of their employees, and they should be. Sometimes there can be a real tension between respecting Human Rights and the safe management of the workplace. A recent case from Quebec illustrates these challenges.

Having a Head for Safety
The Port of Montreal instituted a policy that required all visitors to three terminals were required to wear helmets. On any given day many different types of vehicles passed through the terminal buildings which housed various stevedoring companies. Operating around the terminal buildings were large pieces of industrial equipment such as cranes, forklifts and cargo handlers. When trucks arrived at the facility the driver parked in a holding area and went into an office to deal with paperwork related to his/her cargo. Once the paperwork was completed the driver went to two more marshalling points where he/she again exited the vehicle to facilitate the loading or unloading of the truck. There were many hazards in and around the terminals including falling ice and snow from cranes, items falling from stacked containers and moving vehicles.

Prior to 2005, truck drivers where not required to wear helmets when walking around the terminal. However, after an accident in 2004 and changes to the Criminal Code that imposed additional duties on operators, the terminals instituted the above mentioned policy requiring all visitors to wear helmets for the dual purpose of protecting the visitors’ heads and to make them more visible to other workers on the site.

Religious Beliefs vs. ‘BFOR’
Some truck drivers who followed the tenets of the Sikh faith complained about the imposition of the policy. One important Sikh belief is that its followers must not cut their hair or beards. A Sikh man must wear a turban to protect his hair and is not allowed to remove his turban to wear a hard hat.

The terminals first tried to accommodate the Sikh rule by allowing any affected truck driver to remain in his vehicle and assigned the general paperwork duties to terminal staff. However, this solution became very costly and created significant delays in the movement of cargo. This accommodation was stopped in 2008, and a handful of drivers brought various proceedings in Quebec Superior Court for a declaration that Sikh followers had a right to wear turbans instead of hard hats while picking up cargo at the terminal. The truck drivers had refused to wear oversized helmets over their turbans.

The proceeding was significantly delayed and did not come to a hearing until November 2015. The Quebec superior Court ultimately dismissed the action holding that the helmet policy was not discriminatory under either of the Canadian Human Rights Act or the Quebec Charter because the policy was a bona fide occupational requirement (BFOR), and the restrictions were reasonable and justified to protect employee safety even though they interfered with the Sikh driver’s religious beliefs.

A Bona Fide Concern for Safety
The Court applied the well-known Meorin test to determine if the policy was a defensible BFOR and examined the following factors: was the policy adopted honestly and in good faith and for a purpose rationally connected to the work in question, and was the policy reasonably necessary for accomplishing that purpose, including that it was impossible to accommodate the complainant without suffering undue hardship?

The Court held that the policy was implemented in good faith by the terminals to protect all persons who may be present. It was rationally connected to the activities engaged in by the truck drivers given the safety obligations imposed by the worker’s compensation legislation and the Criminal Code. The Court then went on to hold that accommodating the truck drivers would constitute and undue hardship saying:

[T]he accommodation measure put in place between 2005 and 2008 constituted undue hardship for MGT. Further, the evidence did not reveal the existence of any other measure that respected the religious beliefs of the [drivers], given their refusal to wear a helmet over their turbans, while permitting [them] to conform to their legal obligation to assure the [drivers’] safety.

In other words, the requirement to wear a helmet is an occupational requirement that is justified, and any derogation from this policy would constitute undue hardship for the [companies]. This requirement does not become discriminatory simply because it produces variable results as a result of personal differences.

What is striking here is the absence of any initiative or co-operation of the [drivers] with a view to improving the accommodation measure put in place by MGT from August 2005. There was no contact with the [companies’] representatives after that date.

This case is in line with other decisions where legitimate safety concerns can override religious beliefs and restrictions. However, it is important that an employer take the necessary steps to try to accommodate any such restriction. It will only be in cases where there is actual undue hardship, as there was here, that a court or tribunal will uphold policies that directly interfere with religious beliefs.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace issues.

(PeopleTalk Summer 2107)