Crucifix dismissal sees worker win $39K
A Christian factory worker dismissed for refusing to remove a crucifix necklace has been awarded £22,000 ($39,000) by a UK tribunal. (the equivalent of Fair work in Australia). It was found that the worker’s dismissal was the result of indirect religious discrimination. The employer, however, argued that the necklace presented a risk within the workplace, in this case a chicken processing factory. Crucifix dismissal sees worker win $39K will make interesting reading.
This case raised key questions about the rights of workers to religious expression, even if that expression could endanger the worker themselves. And while it took place in the UK, it provides insight into how such instances of religious discrimination could be dealt with by Australian workplace tribunals.
Let’s look at the events of the case – Mr J Kovalkovs v 2 Sisters Food Group Limited  E.T. Z4 (WR) (28 March 2022) – and why the tribunal came to rule in favor of the worker.
Devout Christian faces dismissal for wearing religious necklace
Mr Kovalkovs is a Russian Orthodox Christian who believes that a crucifix necklace must be worn as a sign of his faith. He began working in the chicken processing factory of 2 Sisters Food Group Limited in November 2019. Mr Kovalkovs was quickly promoted to the role of quality inspector, and thereafter underwent training on the company’s foreign body control policy.
During the policy induction he learned that jewelry must not be worn in the factory production areas. The policy however allows for two exceptions. A worker can wear a ring, and pending a risk assessment, religious jewelry can also be worn. On 23 December 2019, Mr Kovalkovs’ manager, Ms McColl, told him to take off his necklace as it was against the foreign body control policy. She didn’t bother to conduct a risk assessment. Mr Kovalkovs did take the necklace off, but started wearing it again at a later date.
Risk assessment deems necklace a potential hazard
On 30 January 2020, Mr Kovalkovs had a meeting with the manager responsible for the foreign body control policy, Ms Fergusson. This was to discuss a bullying complaint he had made against other staff. But Ms Fergusson noticed that Mr Kovalkovs was wearing his necklace and told him to take it off.
Mr Kovalkovs refused to remove the necklace, arguing that it had religious significance. Ms Fergusson told him that she would organise a risk assessment for the necklace, which was carried out on 10 February by Ms McColl. The risk assessment deemed that the necklace posed a risk to Mr Kovalkovs’ safety by potential entanglement, entrapment or tearing. It also found that the necklace posed the risk of contamination to the chicken processed at the factory.
Factory worker told to take off necklace or be dismissed
Ms McColl communicated these risks to Mr Kovalkovs, and that he must remove the necklace. She, however, didn’t discuss any ways that these risks could be mitigated. For instance, by tucking the necklace behind his shirt, or ensuring it was contained within his protective gear.
Mr Kovalkovs outright refused to take the necklace off, and he was summoned to meet a member of the HR team, Ms Watt. Mr Kovalkovs was told that by refusing to obey a management instruction, he would be dismissed immediately. He still refused, and so was told to leave the premises.
His dismissal was later confirmed in writing on 14 February 2020.
Factory worker appeals his dismissal
Mr Kovalkovs subsequently appealed his dismissal with the Scottish Employment Tribunal. In his original hearing in January 2021, Mr Kovalkovs case was thrown out by the Tribunal. But he soon appealed that decision, and his case was once again heard in March 2022. The Tribunal found that 2 Sisters Food Group did not provide evidence supporting its claims. Namely, evidence that the health and safety of its employees outweighed the discriminatory effect that the foreign body control policy had on the factory worker.
The Tribunal arrived at this finding because there were several failures with regard to the risk assessment performed by Ms McColl. It was found that it was her first time performing a risk assessment, and that she had not completed parts of it. Ms McColl also didn’t consider ways to mitigate the risk of the necklace. Like ensuring it was tucked into clothing or covered.
Ultimately, the Tribunal ruled that the foreign body control policy was indirectly discriminatory to Mr Kovalkovs, and therefore his dismissal wasn’t warranted.
Would this dismissal be legally upheld in Australia?
When it comes to religious discrimination in the workplace, Australia’s laws are different to those in the UK. Under UK equal opportunity laws, religion or belief is defined as “any religious or philosophical belief” including “a reference to a lack of belief.” This is a protected characteristic under the laws.
In Australia, the definition of religion is far more complex. Courts have historically had difficulty defining religion because, according to Fair Work Commission, there is an “absence of a universally satisfying definition of the term.” There are guidelines to help define religion provided by the High Court of Australia, but they aren’t determinative.
What Australian laws cover workplace religious discrimination?
Religious discrimination comes under the General Protections provisions of the Fair Work Act 2009. This also covers any other discrimination based on an employee’s protected characteristic. Such as their race, sex or sexual orientation, to name just a few.
However, protection against a form of discrimination must only be applied if it covered by either a Commonwealth law. Or applicable State or Territory law. This quirk of the General Protections provisions means that in New South Wales and South Australia, employees aren’t able to seek protection on the grounds of “religion” or “political opinion.”
This is because there is no legislation in either state that provides protection for these characteristics. Therefore, an employee in either state would not be eligible to make a General Protections application on the grounds of religion or political opinion.
Dismissed for religious belief: The case of Israel Folau
Perhaps the most famous Australian case of an employee being dismissed for expressing their religious beliefs is that of former rugby star Israel Folau. In 2018, Mr Folau published an Instagram post that featured a quote from the bible.
“WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolators HELL AWAITS YOU. REPENT! ONLY JESUS SAVES,” read the post.
Mr Folau was subsequently dismissed by Rugby Australia, who deemed the post discriminatory to the LGBTI community. Mr Folau then launched legal action against his former employer. The crux of this legal action was his claim that the contents of the Instagram post was his religious belief.
But because he had made the post while in NSW, Mr Folau couldn’t make a claim alleging religious discrimination under the General Protection provisions. Instead, Mr Folau made a claim under the Fair Work Act’s unlawful termination provisions. Under these provisions, the form of discrimination experienced by the employee doesn’t have to be covered by Commonwealth, State or Territory legislation.
Mr Folau and Rugby Australia, however, came to a settlement before his case made it before a judge.
Pharmacist dismissed for refusing to remove Islamic headdress
In another religious discrimination case that took place in NSW, a Muslim worker was dismissed by a Sydney pharmacy for refusing to remove her Islamic hijab while at work.
The case came before a parliamentary inquiry in 2021. Bilal Rauf, speaking on behalf Australian National Imams Council, told the inquiry that the worker was ordered not to wear the hijab. This was because her manager thought it would offend customers. “This was at a place in [Sydney’s] eastern suburbs and she was told in very clear terms: ‘look, around here, people don’t like this thing, so if you want to wear the hijab that’s a matter for you, but I won’t be able to keep you on here’,” said Mr Rauf.
Mr Rauf told the inquiry that the woman refused the order to stop wearing her hijab in the pharmacy and was subsequently dismissed. “She ended up losing her employment because she had no choice or ability to do anything about that,” he said.
Had this religious discrimination taken place in another state or territory, like Queensland for instance, the worker would have had recourse to make a claim under the General Protections provisions. In Queensland, the 1991 Anti-Discrimination Act prohibits discrimination based on an individual’s religious belief or activity.
Have you been dismissed or treated unfairly due to your religion?
Conclusion to Crucifix dismissal sees worker win $39K
If you have faced religious discrimination in the workplace, A Whole New Approach can help you understand your rights. For over two decades, our expert team has helped thousands of employees seek redress through the Fair Work Commission, and other legal avenues. We can help you understand if you are eligible to take action under the General Protections provisions or make an unfair dismissal claim. Casual workers rights, employment rights, workplace investigations, toxic workplaces, all Fair work matters, call us, advice is free
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