Worker's $27k holy day payout

Ruling finds Affco breached Human Rights Act

CHRIS GARDNER
Last updated 05:00 04/03/2014
Jalesi Nakarawa, affco
PETER DRURY/Fairfax NZ

HAPPY WITH OUTCOME: Jalesi Nakarawa was awarded damages of $27,118 after being told to go home by Affco management because he refused to work Saturday for religious reasons.

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A Waikato business had been ordered to pay out more than $27,000 and provide human rights training to managers after a worker was told to go home because he believed Saturday was a holy day and he should be at church.

In the Human Rights Review Tribunal decision released yesterday Affco was ordered to ensure managers were aware of its obligations under the Human Rights Act due to its treatment of casual worker Jalesi Nakarawa, a Phd student at Waikato University.

Affco is now looking at what grounds they have to appeal the ruling, but the case has employment lawyers warning bosses to regularly review the way in which they deal with staff to ensure they meet their legal obligations regarding human rights.

Mr Nakarawa, a Hamilton based member of the Church of God's Faithful congregation, which meets Saturdays in Auckland, started as a casual worker at Affco's Horotiu plant on December 13, 2010.

At his job interview, Mr Nakarawa, who had worked in a similar role at the Huttons factory in Hamilton, asked if he could work day shift and said he could do overtime if needed.

But he was rostered on at night.

Nine days later Mr Nakarawa told Affco production manager Kevin Casey he could not work overtime between sunset on Friday and Saturday because it was his church's holy day or sabbath.

He was then told that if he "could not work on Saturdays he did not meet the needs of the company and he should go home".

Mr Nakarawa, a former corrections officer, was allowed to finish his shift and work two more before Mr Casey confirmed on December 30 he would not be returning to work.

Plant manager Jamie Ginders wrote to Mr Nakarawa on January 6, 2011, strongly refuting religious discrimination.

Mr Ginders claimed Mr Nakarawa had changed his position about overtime after he had been employed and said he would remain on the company's books.

But Mr Nakarawa was not rostered on again, so complained to the Human Rights Commission.

The Human Rights Review Tribunal, chaired by Rodger Haines and including Patsi Davies and Mike Keefe, found there was no doubt that the Mr Nakarawa's employment was terminated because of "his obedience to the commandment that he not work from sunset on Friday to sunset on Saturday".

"Had he not been of that religious belief, he would have been able to work shifts and overtime without religious restriction," they said.

The tribunal found Affco had breached the Human Rights Act by discriminating against Mr Nakarawa for his religious beliefs.

It awarded damages of $12,118 against Affco for loss of wages and a further $15,000 for humiliation, loss of dignity and injury to the feelings of Mr Nakarawa.

Affco chief executive Hamish Simson said the company, which employs more than 3000 people nationally of different religions, had not been in front of the tribunal before.

"This is the first case ever," he said.

"This is a case of him accepting a position when we were unaware that he could not work Saturdays.

"We are just reviewing it at the moment and will probably appeal."

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Mr Nakarawa told the Waikato Times he was "quite happy" with the tribunal's finding.

"It was a matter of principle for me," Mr Nakarawa said.

DTI Lawyers' director of employment and resource management law Andrea Twaddle said reported cases of discrimination were relatively uncommon in New Zealand.

"But this case does highlight the need for all businesses to be regularly reviewing the way in which they deal with staff to ensure they meet their legal obligations regarding human rights.

"It is important for all employers to remember that discrimination need not be deliberate and is illegal under both the Employment Relations Act and Human Rights Act.

"With a diverse population and therefore increasingly diverse workforce, it is important that employers keep on top of these expectations." 

- Waikato Times

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