Misconduct should be treated as any other misconduct, regardless of motivation
Question: Is it discriminatory to take action, such as discipline or termination, against an employee for misconduct at work that is based on religious beliefs? We have an employee who is bothering other employees who don't share her beliefs. She genuinely believes she is in the right but it's causing problems in the workplace.
Answer: Human rights legislation is designed to protect minorities and other traditionally disadvantaged groups from harassment or discrimination in the workplace. Simply put, individuals are not to be discriminated against on the basis of protected grounds, which include religion. Employers should avoid actions, rules, policies or procedures which unnecessarily interfere with an individual's ability to carry out their religious obligations or observances.
To the extent that existing workplace rules impede an employee from meeting obligations imposed by their religion, efforts must be made to accommodate the employee in question. For example, work scheduling may preclude individuals from observing religious holidays, or workplace rules such as dress codes may interfere with employees’ ability to carry out religious obligations such as wearing particular headgear. Employers must work with the individuals — and union, if applicable — in order to assess whether the employee’s religious obligations can be accommodated. The duty to accommodate an individual's religious beliefs can include, for example, allowing employees to pray at certain times of day, take time off of work in order to attend religious ceremonies and alter the usual workplace uniform.
The question raised here is an interesting one in that it specifically refers to "misconduct based on religious beliefs.” Although the question does not get into detail, it suggests that the individual in question is attempting to force her religious views upon others. She seems to be disturbing her co-workers and impeding their ability to get work done. The question is whether the employee can be subject to discipline or dismissal as a result of this conduct, which is negatively impacting other employees and the workplace in general.
In short, human rights legislation does not protect misconduct or inappropriate workplace behaviour, even when it relates to the employee’s religion. It does not require that employers allow employees to harass their colleagues “in the name of religion.” If the employee is breaching an existing rule or policy, she can be disciplined as a result. Even if there is no applicable rule or policy in place that explicitly addresses this situation, the employee should be warned her behaviour is disruptive and inappropriate, and she will be disciplined if it continues. Either way, it should be made clear the behaviour is unacceptable and will result in discipline, up to and including dismissal.
In other words, this should be treated just as any other misconduct would be. The fact that it relates to religion in some way does not mean that it is somehow shielded from repercussions.
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected]