This article focuses on a specialized class of employment law and human rights issues where there an overlap exists between matters of creed or religion and the legal relationship. In heterogeneous societies, people will disagree, sometimes passionately and fundamentally, over socio-politics, economics, spirituality and other beliefs and conduct. Our societal norms are structured to accommodate healthy disagreement and diversity while providing for a culture of mutual respect and acceptance.
Although our legal system is expected to fairly and effectively address conflict, disputes involving religious elements often require an assessment of issues beyond those typically encountered in many employment and human rights cases. Many courts and tribunals are ill-equipped to deal with these disputes. In some instances, adjudicators will entirely decline them, which give rise to substantial judicial uncertainty.
Consider the case of a catering business aligned to a religious community which hires a food supervisor per an unwritten, mutual understanding of adherence to certain religious practices. These practices are maintained by the main customer group and deemed by the employer to be necessary for the business. After some time, the employer discovered the employee engaging in prohibited, after-work conduct, resulting in termination of the employment.
How would a court decide the issues in this scenario? Would the outcome change if, rather than a caterer, the employer was a religious supervisory organization established to oversee the food and hospitality standards for this specific religious group? What if the employee acknowledges the relevance of these religious standards to the business, but instead denies the existence of a mutual understanding at the outset of the employment?
This article does not provide definitive answers to these questions, but rather highlights relevant issues and discusses some implications for resolution. We suggest that these cases, despite their inherent challenges, are a class of disputes which can benefit from mediated resolutions.
Under pure employment law principles, Ontario employers and employees are generally constrained by common law reasonable notice requirements, the terms of any binding employment contract, and the minimum statutory notice requirements under the Employment Standards Act. In the absence of special contractual terms, an employer may dismiss an employee without cause so long as the employer provides reasonable notice or compensation in lieu of notice to the employee. Note that we are not addressing here those disputes revolving around "cause" for termination.
The Human Rights Code ("the Code") provides a layer of protection beyond those related to wage compensation and reasonable notice. The Code prohibits all forms of workplace discrimination in relation to a protected ground, whether in the form of policies or actual discriminatory conduct. An employer would be prohibited from dismissing an employee in relation to a protected ground even with the provision of a reasonable amount of notice or compensation. These claims carry greater potential for general damages awards and other remedies than ordinarily available strictly under the employment law regime.
Despite the Ontario employment and human rights legal framework, claims involving issues of religious standards present unique challenges to resolution. Courts prefer not to interfere with the rights of private organizations to interpret their own laws and parties' choice to engage under a private system. Some employment law disputes are therefore considered by adjudicators to be non-justiciable, leaving them with limited or no authority to intervene.
This is especially so when the employment relationship was clearly established under an internal organizational framework with its own dispute resolution processes, such as a religious law system. In such cases, even where a court does accept jurisdiction, it will often be on a limited basis to determine whether the organization conformed to the principles of fairness, natural justice and its own internal rules, rather than a decision on the case's merits. Nevertheless, there is still great uncertainty in this area.
The courts and tribunals have declined jurisdiction in cases involving real economic consequences for the claimant. In Hart, the court ruled that the employment relationship between a Roman Catholic priest and his employing Diocese was primarily ecclesiastical in nature and therefore not open to a common law claim. Similarly, in Wall, the Supreme Court of Canada dismissed a review application by a disfellowed member of a Jehova's Witnesses congregation, despite significant financial consequences resulting from his excommunication. In those decisions, the disputes were characterized primarily as doctrinal and religious in nature, and accordingly were deemed non-justiciable.
Other cases, however, demonstrate a greater willingness to adjudicate such disputes. In Kong, the Court approved a wrongful termination claim by a pastor against the former employing Church, ruling that the employment law dispute was properly characterized as civil rather than ecclesiastical. Still, the issues were very carefully framed based on the particular facts of the case, providing little structured guidance for further disputes.
Given how frequently these disputes may arise in large, multicultural areas such as in the GTA, such parties should not be left without accessible and predictable options for timely resolution. Where possible, it may be in the interest of all parties to consider a mediated resolution before committing their multifaceted case to an unwilling or ill-fitting forum for adjudication.
Diane Neumann discusses the importance of having experience and knowledge in the subject matter being mediated.By Diane Neumann