Worker protection is the cornerstone of Canadian occupational health and safety legislation. Protecting workers requires not only implementation of effective risk mitigation strategies but also a respect for basic human rights
In situations where human rights legislation is pitted against occupational health and safety legislation, employers that accommodate a worker’s religious request may be in contravention of health and safety requirements. Under occupational health and safety legislation, employers have a legal duty to take reasonable precautions to protect the health and safety of workers. This includes a duty to protect workers from occupational hazards that may cause head injuries. Under human rights legislation, discriminating on the basis of a person’s religious beliefs is prohibited. The right of Sikhs to wear religious headgear is protected under human rights legislation, subject to the test for bona fide occupational requirements and the undue hardship standard.
These issues were recently raised following a Quebec Court of Appeal decision, which held that in this particular matter, occupational health and safety prevails over religious freedom. In Singh c. Montréal Gateway Terminals Partnership, the appellants were three employees of the Sikh faith. They sued a third-party federally regulated employer for allegedly discriminating against them and infringing on their religious freedom by requiring them to wear a hard hat at work.
Further to their jobs as truck drivers, the employees were required to drive to the Port of Montreal terminal site (“terminals”) to pick up and deliver merchandise containers. The respondent employer had a policy in place that required anyone moving in and around the terminals to wear hard hats. Although the appellants were not employees of the respondents, they attended at the terminals as part of their work. As such, the policy applied to them. Specifically, it applied when they were outside of their trucks and in the terminals. The employees claimed the policy was discriminatory and infringed on their religious freedom. They sought a judgment that would exempt them, for religious reasons, from having to wear a hard hat at the terminals. The respondents claimed that the policy was adopted to comply with section 12.1(1) of the Canada Occupational Health and Safety Regulations, respecting the use of protective headwear when there is a risk of head injury. The respondents also claimed that the 2004 amendments to the Criminal Code respecting OHS criminal negligence and the penalties therein encouraged them to implement the policy.
The trial judge concluded that the employees demonstrated that they had suffered discrimination. However, the protective headwear, in this case, was a justifiable occupational requirement. The respondents demonstrated that the obligation to wear protective headgear was adopted for a purpose that was rationally connected to the performance of the job in that it ensured the health and safety of workers at the terminals. The expert evidence presented at trial led to the conclusion that workers at the terminals are likely to experience “very real injury” from an object falling on their head, being struck by a moving object or hitting their head against a stationary object. As such, the trial judge concluded that the policy was reasonably necessary for the employer and that any departure from the policy would constitute undue hardship for the respondents. In reaching this conclusion, the trial judge considered an accommodation measure that had been implemented by the employer for three years prior allowing Sikh truckers not to wear hard hats if they remained inside their trucks at all times. However, the accommodation was ultimately rejected by the workers and the employer due to its lack of economic viability. The trial judge also considered that the appellants offered no accommodation alternative other than requiring that they be exempt from wearing a hard hat.
The key takeaways from this case are as follows:
- Authorizing a worker to voluntarily expose themselves to a health and safety risk by bypassing a safety measure that would control that risk is incompatible with the legislator's goal of worker protection.
- When it comes to issues of religious freedom and the safety of workers, the workplace parties must work collaboratively to identify suitable, alternative workplace accommodations, and health and safety risks must be assessed prior to determining whether the undue hardship standard has been met.
Cathy Chandler is a paralegal at Fasken in Toronto. With expertise in OHS and workers’ compensation law, she provides consulting, training and litigation support for organizations across Canada. She can be reached at (416) 868-7812 or firstname.lastname@example.org.