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Courts can comfort when intolerance rears ugly head

22 June 2016


Our news lately has been dominated by tragic killings. When the reports follow, we often find that a common theme has been the issue of human rights, and the place of migrants in our society.

Recently Jo Cox, a Labour MP from West Yorkshire, was shot at point-blank range and stabbed while she was on her way to meet with her constituents. Jo Cox had been campaigning for Britain to remain part of the European Union.

Bystanders said that he repeatedly shouted "Britain First" as he killed her. It has also been reported that the man had subscribed to S A Patriot, a South African magazine with an editorial stance being against multi-cultural societies and "expansionist Islam". The Orlando shootings have also shaken many. Republican presidential candidate Donald Trump was quick to seize on these events, triumphantly stating on twitter: "Appreciate the congrats for being right on radical Islamic terrorism, I don't want congrats, I want toughness and vigilance. We must be smart!".

The issues that have surfaced in the Western world, particularly over the last year, evoke powerful and dangerous emotions. On occasions even comments in our own Parliament are connected.

Eventually these issues come before our courts. It is expected the courts will exercise wisdom as guided by legislation, and to balance up and deliver justice to people from many different cultures. These issues often end up playing out in employment law.

In Europe, Belgian receptionist Samira Achbita was dismissed for wearing a headscarf for work in 2006. She was Islamic.

After three years of exclusively wearing a headscarf outside of work, she indicated that she would start wear the headscarf during work hours as well, for religious reasons. However her employer prohibited employees from wearing any religious political or philosophic symbols while on duty. She was eventually dismissed by her employer.

She claimed wrongful dismissal on the grounds of direct discrimination relating to her religion. After being heard in the Belgian courts, it was later appealed to the European Court of Justice.

The European Court of Justice has yet to deliver its decision, but in the last few days the advocate general for the court released an opinion. They have stated that a prohibition of wearing Islamic headscarfs at work not does amount to direct discrimination if there is a general company rule prohibiting visible political philosophical and religious symbols in the workplace. The door was left open for it constituting indirect discrimination.

These same issues have appeared in New Zealand. Late last year, two young Muslim citizens, Fatima Mohammadi and Fatima Abulkarem, reported that following job interviews with potential employers they were turned away because they wore headscarves.

The current line of decisions in New Zealand suggests they would obtain a decision more favourable than the opinion of the Advocate General in Europe.

Jalesi Nakarawa was employed by Affco in New Zealand to work the night shift and overtime. He was very happy to do that provided it did not involve working from Friday sunset to Saturday sunset.

He belonged to the Church of God and believed that, as required by the fifth commandment, the Sabbath should be observed. After a few days of work he spoke to his employer and said that he was unable to work Saturdays.

Nakarawa had little luck with that. Affco said that because he had signed up to work overtime that meant he had agreed to work Saturdays. The manager went further and said if he could not work Saturdays he didn't meet the needs of the company and should go home.

The case came before the Human Rights Review Tribunal. The tribunal ruled that the employer was obliged under the Human Rights Act to make a significant serious and sincere effort to accommodate the employee's beliefs and explore various possibilities. The tribunal found Affco made no attempt whatsoever to do this.

Nakarawa got $15,000 compensation and $12,118 for lost wages. Almost $30,000 in total. A very different expected outcome from the Belgian receptionist.

Human emotion has been fanned by political acerbity, particularly in the United States with the presidential election. In Britain, the debate rages on regarding its membership of the European Union. Tragically a young member of the British Parliament has now been killed.

We are blessed to live so far away from those parts of the world where emotions are boiling over so tragically. These issues are still with us in a moderated way.

People here also have strong views. As we transition into an increasingly multicultural landscape, issues like these will continue to occur. Our common humanity calls for tolerance and the court's decisions will attempt to elicit this.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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