Sikh truck drivers delay human rights complaint

CP Rail agrees to negotiate a resolution in turban-hard hat safety dispute
|employmentlawtoday.com

A group of Sikh truck drivers in the Toronto area have backed off a plan to take a complaint to the Ontario Human Rights Commission after Canadian Pacific Railways agreed to negotiate with the drivers over the wearing of turbans versus hard hats, according to the

Toronto Star

.

About 500 Sikh truckers were upset with a proposed mandate by CP Rail requiring them to wear safety hard hats when entering company property. Last week, they announced plans to take their complaint to the commission but backed off when CP Rail agreed to negotiate with them over the issue.

On Aug. 1, CP Rail issued a memo that it was stepping up enforcement of its hard hat regulations because of safety concerns. The truck drivers are under contract to various companies to unload and pick up containers at two of CP Rail’s terminals in the Toronto area.

According to the Star, the Aug. 1 memo states in part:

“Please be advised that as per CPR’s Safety Policy, all drivers required to enter CPR property as well as customer locations are required to wear a hard hat. There are no exceptions to this policy. We understand that this might be a concern for some drivers who are required to wear turbans as part of their religious doctrine … There is zero tolerance at CPR with regards to this requirement.”

Paul Thurston, a spokesman for CP Rail, told the Star that the company has total respect for religious and ethnic diversity, but said there is a safety issue.

CP Rail has suspended the enforcement of the hard-hat rule for the drivers until a resolution can be reached. According to the

Star

, a lawyer for CP Rail has confirmed that negotiations are expected to begin in early September.

What the courts have said on the subject

In 1985, the Supreme Court of Canada tackled the case of K.S. Bhinder, a maintenance electrician with CN in Toronto.

In that case, CN announced that all employees in the Toronto Coach Yard would be required to wear a hard hat when at work. Bhinder was a Sikh and was forbidden by his religion to wear anything on his head except a turban. He refused to wear a hard hat and CN terminated his employment as a result.

He won his case before a human rights tribunal, but that decision was overturned by the Supreme Court.

In

Bhinder v. Canadian National Railway

, the court said the Sikh worker had no doubt proven he had been discriminated against. That meant CN then had to prove the discrimination was a

bona fide

occupational requirement to justify it. CN did just that.

“Here, the rule was adopted by the employer for genuine business reasons, with no intent to offend the principles of the

Canadian Human Rights Act

, and was a reasonable measure in reducing the risk of injury to employees,” the Supreme Court said. “The hard hat rule did not lose its character as a

bona fide

occupational requirement solely because it had the effect of discriminating against (Bhinder) … once established as a

bona fide

occupational requirement for employees in (CN’s) coach yard, the hard hat rule was not a discriminatory practice within the meaning of the act, despite its affect on (Bhinder.)”

In order to establish a

bona fide

occupational requirement it must be:

•necessary to fulfill the requirements of the job — objective evidence of the need for the requirement is essential;

•developed and imposed honestly and in good faith; and

•reasonably necessary to ensure efficient performance of the work and/or safety of workers and the public.

In British Columbia, the province amended the

Motor Vehicle Act

in 1999 to exempt practicing Sikhs who wear turbans from having to wear a helmet while riding a motorcycle.

For more information see:

Bhinder v. Canadian National Railway

, 1985 CarswellNat 144, 9 C.C.E.L. 135 (S.C.C.)


Protective headwear and turbans

The Alberta government, through its Work Safe Alberta initiative, published a bulletin on protective headwear and turbans in May 2004.

Referencing the 1985 Supreme Court decision, it said the wearing of protective headwear at the work site must be justifiable on the basis of the hazards or potential hazards to which workers may be exposed. The requirements must apply to all workers at the work site who may be exposed to those hazards.

Since the employer controls the work site, the workers at the site and the organization of the work, the employer has ultimate responsibility for any accommodation of a worker’s human rights concern.

While underlining the fact that Alberta Human Resources and Employment’s role is to advise the employer and worker of alternative ways of working that comply with the province’s

Occupational Health and Safety Act

regulations, it said it has no authority to instruct the employer or the worker about how to comply with human rights legislation.

But it did offer the following suggestions to help employers and workers resolve the problem of using protective headwear while wearing a turban:

Eliminate or reduce the need for protective headwear.

Section 9 of the

Occupational Health and Safety Code

requires that employers take reasonable measures to eliminate or control those hazards for which personal protective equipment is required, including protective headwear.

Eliminating the dangers of injury to a worker’s head eliminates the need for head protection. However, if the hazards cannot be eliminated or controlled, then protective headwear is required.

Alter the turban.

The turban is actually a two-part covering. The first part, the “underturban”, is secured to the head and is approximately one metre in length. An “overturban” is wrapped over top of the underturban and is approximately five metres in length. The overturban makes up most of the bulk of the turban.

Protective headwear placed on top of this overturban offers little or no real protection because it is too far away from the worker’s head.

The issue may be resolved by removal of the bulky overturban. Without the overturban, protective headwear may sit comfortably on the worker’s head and provide the required protection. Based on resolution of the same issue by the Worker’s Compensation Board of British Columbia, it appears that two and one half wraps of the underturban are sufficient to ensure that the wrap remains tight and provides adequate coverage of the head and hair.

The employer should ask the worker to remove his overturban and, with the underturban still in place, have the worker put on the protective headwear. The employer and worker should then check that the headwear fits properly, that the liner remains intact, and that it can be properly adjusted. If the headwear has hearing protection mounted to it, the hearing protection should be checked to make sure that it functions properly. A chin strap may be required to adequately secure the headwear.

Other alternatives.

If the effectiveness of protective headwear is considered to be inadequate when worn on top of the underturban, then the employer has at least the following choices:

•reassign the worker to duties or a work site where protective headwear is not required;

•introduce work practices that eliminate the worker’s exposure to the hazard. For example, workers delivering materials by truck to a work site where the wearing of protective headwear is mandatory may need to be restricted to the cab of their truck while at the work site; or

•request an acceptance to the requirements for head protection presented in sections 234 to 239 of the

Occupational Health and Safety Code

.

Employers can apply in writing to Alberta Human Resources and Employment, Workplace Policy and Standards, for an “acceptance” to the protective headwear requirements of the Occupational Health and Safety Code. The employer must explain their alternative to the requirement and provide sufficient justification and supporting information to allow the alternative to be evaluated.

If review of the acceptance request concludes that the level of protection is not equal to or greater than that required by the Occupational Health and Safety Code, then the request will not be granted. It does not matter that the worker or workers at risk consent to

being exposed to the hazard.

For more information about the Workplace Health and Safety Bulletin published by the province, click here.

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