'An individual has to do more than just identify a belief they claim is sincerely held': says lawyer after worker cites death of Nigerian king in discrimination suit
“Employers should follow their policies and procedures in all cases, including following their formal process for termination and having multiple people present so there are witnesses - even in what seem to be the most obvious cases, you never know which case is going to become troublesome.”
So says labour and employment lawyer Dylan Snowdon of Carbert Waite in Calgary, after the Alberta Human Rights Tribunal dismissed a worker’s complaint alleging discrimination based on religious beliefs following his termination during a probationary period.
“The employer here took the complaint seriously and they came prepared, even though it seemed like an obvious situation that wouldn't require significant effort on their part - they didn't take any chances,” says Snowdon. “The best way to get a positive outcome is ensuring that, if you're attending a hearing, you do it in a way that provides the maximum level of preparation.”
The worker was hired as a part-time security guard in May 2018 by Paladin Security Group, a security company in Fort McMurray, Alta. He was hired with a three-month probationary period that required him to work at least one shift per two-week pay period.
Normal procedure was for Paladin to assign shifts via email and, if an employee had to cancel a shift, they were to call a specific phone number.
Difficulties during probation
The worker’s first shift was on July 2 and he worked several shifts over the next month. However, Paladin had trouble contacting him to assign shifts, and he didn’t work at least one shift in the second pay period of August.
The worker came to the Paladin office on Sept. 6 and complained about not getting shifts. He also said that the RCMP had seized his cellphone in an investigation of his other employer.
Paladin assigned the worker two shifts at a mall over the following two days, Sept. 7 and 8. However, on Sept. 7, the worker returned to the office to cancel both shifts. The people and culture manager and the client service manager sat down with him to discuss the shift cancellation policy and the worker said that he urgently needed to cancel both shifts because he had to help his wife in Toronto pack for a flight to Nigeria, where they were originally from.
According to the two managers, the worker raised his voice and spoke rudely. The managers left the room and discussed the situation, deciding that they would terminate the worker’s employment. They gave the worker a letter stating that he had failed his probation by not meeting the minimum shift requirement, having poor communication with the company and a poor attitude towards management, and general unsuitability for the position.
As it turned out, the RCMP had seized the worker’s cellphone because of criminal charges against him. The worker’s bail conditions prohibited him from having a cellphone, landline, or internet access or from being in a public location where people under 16 years of age were present. This would have been a breach of his contract, as his job required him to work at a mall and he was required to be able to communicate via email, cellphone, or a landline.
The worker’s bail conditions also prevented him from leaving the province of Alberta.
Religious discrimination alleged
The worker filed a human rights complaint alleging discrimination based on religious beliefs in his termination. He asserted that he cancelled his shifts due to a need to perform religious rites after the death of an ancestral king in Nigeria. He provided copies of his wife’s passport and a flight booking to Nigeria on the day before his first cancelled shift, as well as a certificate conferring a chieftaincy title on the worker and an obituary notice of a royal family member in Nigeria indicating traditional rites were on Sept. 7 and the burial on Sept. 8.
Paladin maintained that the worker never mentioned any religious beliefs, either when he started work or when he cancelled his shifts. Three members of management, including the people and culture manager and the client service manager, testified that they weren’t aware of any religious beliefs brought forward by the worker until he filed the complaint.
The tribunal found that the worker wasn’t credible. The information he supplied didn’t establish any religious beliefs related to the death of the Nigerian king that required him to cancel his shifts. In addition, the worker lied to Paladin about the reason his cellphone had been confiscated – a reason that would have made him unable to work his shifts or travel, said the tribunal.
The tribunal also found that the members of Paladin management were clear and concise, and the company’s position that it didn’t know about any religious beliefs and that the worker provided a false reason for cancelling the shifts was credible.
Credibility
Paladin helped its credibility with the way it handled the termination, says Snowdon.
“They had two people present at the termination meeting – that’s a best practice – even though this was just probationary employee who hadn't been following company protocols,” he says. “It would’ve been very easy for the employer not to follow a normal process and just let him go for not working out - I'm guessing they have a policy or a process that says ‘When you're conducting termination meetings, there's a gold standard method that should involve two people,’ and they did that even for what seemed like such an obvious termination.”
“Right from the very beginning, they had processes in place they took seriously, and that really helped them because they were able to put forward evidence that was credible,” adds Snowdon.
The tribunal determined that the worker “was untruthful and deliberately failed to tell [Paladin] about his criminal charges and… bail conditions, as they would likely have resulted in his immediate job termination.”
The tribunal found that the worker failed to establish prima facie discrimination under the three-part test established by the Supreme Court of Canada. The worker didn’t meet the first part of the test - establishing a protected ground – due to insufficient evidence that connected his status as a chief in Nigeria and the death of a traditional king to religious obligations requiring shift cancellations.
Onus of proof
Meeting the first part of the discrimination test is more difficult for a claim of religious discrimination compared to other forms of discrimination, says Snowdon.
“An individual has to do more than just identify a belief they claim is sincerely held - they also have to provide sufficient objective evidence to establish that the belief is a tenet of religious faith,” he says. “They can't just say ‘I have a religious belief that requires me to attend a funeral’ - it’s a higher burden on the person requesting religious accommodation to support it.”
The tribunal acknowledged that the worker’s termination constituted an adverse impact – the second part of the test – but there was no evidence of a causal connection to a protected human rights ground. Paladin’s position that the worker didn’t raise religious beliefs or request accommodation during the termination meeting was credible and there was no evidence that religion played a role in the company’s decision to terminate the worker’s employment, the tribunal said.
“If the worker had said, ‘I need to cancel these shifts, it's an important part of my religious beliefs for me to attend the funeral’ then Paladin would have needed to collect more information and then make an assessment,” says Snowdon.
The tribunal dismissed the complaint. Paladin was allowed to apply for costs, which it did successfully. The worker was ordered to pay Paladin $25,000 in costs for his dishonesty and misleading behaviour in the complaint and during the hearing.
Dishonest, misleading conduct
It’s unusual for a complainant with an unsuccessful human rights complaint to have costs ordered against them and it only happens in situations of extremely serious misconduct on the complainant’s part, according to Snowdon.
“I think it made it easier for the tribunal to make its credibility findings that the worker had such a significant depth of false and misleading information and withheld relevant information - it wasn’t a difficult decision to find credibility in favour of Paladin,” he says. “I don't know what percentage of dismissed complaints get costs awarded against them, but it's certainly less than one per cent.”
Regardless of the dubious merits of the worker’s complaint, Paladin helped itself by taking its defense seriously, says Snowdon.
“I'm guessing the complaint would have been met with some disbelief when religion hadn’t come up at all previously - and the Human Rights Commission is usually pretty good at filtering [meritless claims] out,” he says. “But Paladin took it seriously the whole way – they had three witnesses attend the hearing and they came prepared - and I think that made a significant difference.”
