May a Jew be compelled by his employer not to work on the Sabbath? That question recently came before the Québec Human Rights Tribunal.
In Commission des droits de la personne et des droits de la jeunesse (Zilberg) c. 9220-3454 Québec Inc. (Spa Liv Zen (Spa Orazen)) 2017 QCTDP 13 (CanLII), the claimant, Richard Zilberg, was a hairstylist employed by Spa Orazen and its owner, Iris Gressy. He had a strong Jewish identity and attachment to his religion but chose not to observe Shabbat. So he worked six days a week including Saturday – which was the busiest day of the week at the salon. .
In 2012, Ms Gressy, who was herself Jewish, suggested that Mr Zilberg should stop working on Saturdays because he was a Jew. He disagreed and continued to work Saturdays . In mid-July 2012, Ms Gressy told him no longer to work on Saturdays, “in accordance with her new policy whereby her Jewish employees are not permitted to work on the Sabbath”. She also told him not to tell clients why he would no longer be working on Saturdays but simply to tell them that Saturday was his usual day off . Another Jewish employee contested the policy and lost her job, but Mr Zilberg, who was dependent on the job for his livelihood, followed his employer’s instructions and stopped working on Saturdays .
In August 2012, Ms Gressy learned that Mr Zilberg had told a client of the salon that his employer did not allow him to work on Saturdays because he was Jewish. She accused him of a breach of confidentiality. Following an argument, she fired him on the spot [12 & 13]. He complained to the Québec Human and Youth Rights Commission, which pursued his case before the Human Rights Tribunal.
The Tribunal concluded that Mr Zilberg’s religion had been a factor in Ms Gressy’s decision to restrict his right to work and to dismiss him .
S. 10 of the Québec Charter of Rights and Freedoms declares that:
“Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”
In Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (Bombardier Aéronautique Centre de formation) 2015 CSC 39 (CanLII), the Supreme Court of Canada had laid down three conditions for discrimination to exist within the meaning of s. 10. In order to demonstrate discrimination, there had to be:
(1) a distinction, exclusion or preference;
(2) based on one of the grounds listed in the first paragraph of s. 10;
(3) and having the effect of nullifying or impairing the recognition or full exercise of a person’s right or freedom.
On that basis:
“If no justification is established by the defendant, proof of these three elements on a balance of probabilities will be sufficient for the tribunal to find that s. 10 of the Charter has been violated” .
The Tribunal concluded as follows:
(1) The decision to forbid Mr Zilberg to work on the Sabbath because he was Jewish violated his right to equality in employment due to his religion.
(2) His dismissal was based, in part, on religious grounds.
(3) The decision violated his rights to freedom of conscience and religion, the safeguarding of his dignity and respect for his private life .
Neither Québec Inc nor Ms Gressy entered an appearance. The Tribunal awarded Mr Zilberg $6,000 in material damages, $4,000 in moral damages and $2,500 in punitive damages.
[With thanks to Paul de Mello Jr for the lead.]