News
God in the workplace
First published in The Independent, 18 September 2008.
Here's how the apocryphal goes: shortly after the Columbine High School massacre in 1999 a reader wrote a letter to the editor of the New York Times. It read: "Dear God, why do you let this sort of this happen in our schools?"
The next day, a response was carried, in the form of a letter from God: "Don't blame me, they haven't let me in public schools since 1968".
The anecdote is potentially amusing – but it also underlies a serious point: what part, if any, should religion play in the institutions which make up our society?
The question is one which is live in the context of employment law. The human rights legislation provides, for example, that an employer may not discriminate in the workplace on the basis of religious belief.
At its most basic, of course, this means that an employer cannot, for example, advertise for "a good Christian worker" (as happened in a case in 1981). But life is more complicated than this – and issues of religious discrimination rarely turn on such overt grounds.
Take, for example, the recent case of a Ugandan farm manager who was injured in a workplace accident.
The manager was required to perform the wide variety of tasks expected of somebody in charge of a farm business. Among other things, this often involved the man working long hours.
In October 2007, the man – who was Muslim – was fasting during daylight hours, in observance of Ramadan. His lack of food made him fatigued, and contributed to a most unfortunate workplace incident.
The man had dozed off on his tractor and, once woken, rushed to tend to a piece farm machinery (a "power take-off"), which resulted in his clothing being ensnared – and him being flung to the ground, suffering severe bruising, abrasions and broken bones, and rendered unconscious.
In sentencing the man's employers under the health and safety legislation to a fine of $7,500, the court commented that, among other things, one of the steps which could have been taken to prevent the incident would have been reducing the man's hours of work to take account of Ramadan.
The case illustrates one of the potential difficulties confronted by an employer in such circumstances.
On one hand, an employer should, of course, attempt to accommodate a person's religious beliefs and practices.
On the other, of course, such accommodation must necessarily take into account the commercial reality of the employer's business. What if, for example, it is simply commercially unfeasible to reduce an employee's hours for the month of Ramadan?
These are difficult issues – and, as this case illustrates, they are not necessarily capable of an easy solution.
Another example of the difficulties faced in accommodating religious beliefs is offered up by virtue of the Supreme Court's recent decision in New Zealand Airline Pilots Association v Air New Zealand [2008] 2 NZLR 1.
The case concerned the ability for employers and employees to agree to transfer a public holiday to another mutually agreed date. The essence of the Supreme Court's decision was a ruling that while the parties may agree to transfer a day, if employees actually work on the "real" day itself, they must be paid time and a half by their employer.
One of the practical consequences of this decision may be a disincentive for employers to agree to shift public holidays because of the consequent premium that will result (from being required to pay 50 percent extra in those employees' wage bill for the day worked on the "real" holiday).
The decision has particular meaning in the case of a group of workers who are not Christian and who do not wish to observe one of the New Zealand's Christian public holidays (Christmas or Easter).
Recently, a group of workers in the United States in a poultry processing plant agreed with their employer not to observe one of the public holidays but instead to transfer that day to allow them to observe a Muslim holiday. In a similar situation in this country, however, if the employer agreed to transfer the public holiday, it would still have to pay time and a half for those workers who worked on the "real" day itself.
The real issue may not so much be with the Supreme Court's decision in this case but instead with the very foundation of New Zealand's holidays legislation, which (in a large part) is premised upon the basis of Christian beliefs and holidays.
It may be that New Zealand's changing society and religious make-up requires some consideration to be given to future amendment to the law.
