CCPR/C/37/D/208/1986

EB. Communication No. 208/2986, KX. Singh Bhinder v. Canada (views i

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adopted on 9 November 3989, at the thirty-seventh session)

Submitted by: | Karnel Singh Bhinder

Alleged victim: The author | |

State party concerned: Canada |

Date of communication: 9 June 1986

Date of decision on admissibility: 25 October 1988

The Human Rights Committee established under article 28 of the International |

Covenant on Civil and Political Rights,

Meeting on 9 Hovember 1989,

Having concluded its consideration of communication No. 208/1986, submitted to

the Committee by Mr. Karnel Singh Bhinder unde* the O-cional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the

author of the communication and by the State party.

Adopts the following: .

1. ‘The author of the communication, dated 9 June 1986, is Karnel Singh Bhinder, a

naturalised Canadian citizen who was born in India in 1942 and emigrated to Canada

in 1974. He claims to be a victia of a violation by Canada of article 18 of the

International Covenant on Civil and Political Rights. A Sikh by religion, he wears

a tuzban in his daily life and refuses to wear safety headgear during his work.

This resulted in the termination of his labour contract. -

The facts as submitted

2.1 In April 1974, the author was employed by the Canadian National Railway

Company (CHR) as a maintenance electrician on the night shift at the Toronto coach

yerd.

2.2 CHR is a Crown Corporation; its shares are owned by the Crown and it is

accountable to the Canadian Parliament for the conduct of its affairs.

2.3 With effect of 1 December 1978, the company decreed that the Toronto coach

yard would be a “hard hat area" in which all employees were required to wear safety

headgear.

2.4 At the time, the relevant Canadian legislation in this matter read as follows:

~§0—=

(a)

(b)

(c)

(a)

(e)

(f)

Canada Labour Code, Chapter L-1, Section 81, subsection (2):

Every person operating or carrying on 4 federal work, undertaking or

business shall adopt and carry out reasonable procedures and techniques

designed or intended to prevent or reduce the risk oi employment

injury (...).

Section 82:3

Every person employed upon or in connection with the operation of any

federal work, undertaking or business shall, in the course of his

employment,

(a) take all reasonable and necessary precautions to ensure his own

safety and the safety of his fellow employees; sad

(b) at all appropriate times use such devices and wear such articles of

clothing or equipment as are intended for his protection and furnished to

him by his employer, or required pursuant to this Part to be used or worn

by him.

Section 83, subsection (1):

The fact that an employer or employee has complied with or failed to

comply with any of the provisions of this Part or the regulations shall

not be construed to affect any right of an employee to compensation under

any statute relating to compensation for employment injury, or to affect

any liability or obligation of any employer or employee under any such

statute.

Chapter 1007 (Canada Protective Clothing and Equipment Regulations),

Section 3:

Where

(a) it is not reasonably practicable to eliminate an employment danger

or to control the danger within safe limits; and

(b) the wearing or use by an employee of personal protective equipment

will prevent an injury or significantly lessen the severity of ar injury,

every employer shall ensure that. each employee who is exposed to that

danger wears or uses that equipment (...).

Chapter 1007, Section 8, subsection (1):

No employee shall commence a work assignment or enter a work area where

any kind of personal protective equipment is required by these

Regulations to be worn or used unless

(a) he is wearing or using that kind of personal protective equipment in

the manner prescribed in these Regulatious (...).

Chapter 998 (Canada Electrical Safety Regulations), Section 17:

No employer shall permit an employee to work, and no employee shall work,

on an electrical facility

(a) thet has not. more than 250 volts (...), where there is a possibility

of a dangerous electric shock, or

(b) that has more than 250 volts, but not more than 5.200 volts (...),

cr not more than 3.00U vwo.~' *

unless that employee uses suvh insulated protective clothing and

equizment as is necessary, in accordance with good electrical safety

practice or as required by a sufety officer, to protect him from injury

during the performance of the work.

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(g) Section 18:

No employer shall permit an employee to work, and no emploee shall work,

on an electrical facility that, in accordance with good electrical safety

practice, requires protective headwear to be worn unless he is wearing

protective headwear (...).

2.5 During the five years prior to the introduction of the hard hat requirement,

20 head injuries were sustained among the Toronto coach yard's workforce of 487,

52 of whom were employed as electricians.

2.6 The author's work consisted of the nightly inspection of the undercarriage of

trains from a pit located between the rails, as well as maintenance work inside and

outside the train, i.e. on the engine.

2.7 Since it is a fundamental tenet of Sikh religion that men's headwear should

consist exclusively of a turban, the author refused to comply with the new hard hat

regulations. He also refused a transfer to any other post. His employment was

consequently term!nated by the CNR on 6 December 1978.

2.8 On 7 December 1978, the author filed a complaint with the Canadian Human

Rights Commission, alleging that the CNR had discriminated against him on the basis

of hia religion. In its decision of 31 August 1981, a Human Rights Tribunal

appointed pursuant to the Canadian Human Rights Act made inter alia the following

findings:

(a), “there is no evidence that other employees or the public will be affected

if Mr. Bhinder were to continue working without a hard hat" (paragraph 5167);

(b>) "(...) (the author) will be in greater danger if he does not conform with

the hard hat policy. There is no doubt that Mr. Bhinder's turban is inferior

to a hard hat in its capacity to protect against impact and electrical shock

{...) There is a real increase in risk if Mr. Bhinder does not wear his hard

hat, even though that. increase in risk may Se very small (paragraph 5177);

(c) "(..+) (CNR) pays compensation directly to its injured employees, and as

such, if aa employee's risk of injury is increased, the likelihood cof

receiving compensation correspondingly increases, and as a result the

employer's liability to pay compensation consequentially increases"

(paragraph 5332 (37)).

2.9 In respect of the application of the hard hat rule to Mr. Bhinder, the

Tribunal found a violation of the Canadian Human Rights Act on the grounds that the

hard hat regulation “has the effect of denying a practising Sikh ... employment

with the Respondent because of the Complainant's religion" (paragraph 5332 (3)).

This finding was based on the following considerations:

(a) An employment policy may be discriminatory within the terms of the

Canadian Human Rights Act, even if the employer has no intention to

Giscriminate (paragraph 5332 (3)).

(b) implicit in the defense of bona fide occupational requirement in the

Canadian Human Rights Act is the requirement that employers make such

accommodation to the religious beliefs of their employees as will not cause

them undue hardship (paragraph 5332 (29-32)).

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2.10 The Tribunal acknowledged that the “implications of an exemption made for

Mr. Bhinder is that all Sikhs are exempt from hard hat regulations in all

industries to which the Human Rights Act applies (...)", and that “the effect may

be an increase in the overall accident rate in the affected industries for the

purpose of workers' compensation" (paragraph 5332 (36)). It held, however, that

such added risk was to be regarded as inherent to the employment and consequently

to be borne by the employer (paragraph 5332 (38)).

2.11 The CNR appealed and on 13 April 1983 the Fedoral Court of Appeal reversed

the decision of the Human Rights Tribunal on the grounds that the Canadian Human

Rights Charter prohibited only direct and intentional discrimination and that it

did not encompass the concept of reasonable accommodation.

2.12 The author's appeal to the Supreme Court of Canada was dismissed on

17 December 1985. Although the Supreme Court held that also unintentional or

indirect discrimination was prohibited by the Canadian Human Rights Act, it

concluded that the policy of the CNR was veasonable and based on safety

considerations, and therefore constituted a bons fide occupational requirement.

The Court also denied a duty of the employer to “reasonable accommodaticn"” under

the Act.

The_complaint

3. The author claims that his right to manifest his religious beliefs under

article 18, paragrapn 1, of the Covenant has been restricted by virtue of the

enforcement of the hard hat regulations, and that this limif.ation does not meet the

requirements of article 18, paragraph 3. In particuiar, he argues that the

limitation was not necessary to protect public safety, since any safety ris.

ensuing from his refusal to wear safety headgear was confined to himself.

The State party's comments and observations

4.1 The State party submits that the author was not discharged from his employment

because of his religion as such but rather because of his refusal to wear a hard

hat, and contends that a neutral legal requirement, imposed for legitimate reasons

and applied to all members of the relevant work force without aiming at any

religious group, cannot violate the right defined in article 18, paragraph 1, of

the Covenant. In this respect, it refers to the Human Rights Committee's decision

in communication No. 185/1984 (L.T.K. v. Finland), where the Committee observed,

that "(...) (the author) was not prosecuted and sentenced because of his beliefs or

opinions as such, but because he refused to perform military service".

4.2 The State party also invokes its obligation under article 7, paragraph (b)., of

the International Covanant on Economic, Social and Cultural Rights. to ensure "safe

and healthy working conditions", and claims that the interpretation of article 18

of the Covenant should not interfere with the implementation of the ICESCR through

unifozmly applied safety requirements.

4.3 The State party argues that it was open to the author to avoid the operation

of the bard hat requirement by seeking other employment, and refers to a decision

of the European Commission of Human Rights (Ahmad v. UK, (1982) 4 E.H.R.R. 126,

paragraphs 11, 13) which, in assessing the scope of the freedom of religion as

guaranteed by article 9 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms, had observed that - in addition to the limitations

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contained in that article - special contractual obligations could influence the

exercise of the right to freedom of religion, and that the applicant remained free

to resign from his employment if he considered it to be incompatible with his

religious duties,

4.4 In the State party's opinion, article 18 of the Covenant has not been

violated, since the hard hat reguiation represented a reasonable and objective

criterion. in no way incompatible with article 26 of the Covenant.

4.5 The State party further considers that article 18 does not impose a duty of

“reasonable accommodation", that the concept of freedom of religion only comprises

freedom:from State interference but no positive obligation for States parties to

provide spacial assistance to grant waivers to members of religisus groups which

would enable them to practice thair religion.

4.6 The State party further submits that if a prima facie infringement of

article 18, paragraph 1, of the Covenant were to be found in the circumstances of

Mr. Bhinder's case, such limitation was justified under paragraph 3. The State

party argues that the scope of this provision comprises also the protection of

those persons subject to the limiting regulations.

5.1 Ona the basis of the information before it, the Committee concluded that all

conditions for Ceclaring the communication admissible were met, including the

requirement of exhaustion of domestic remedies under article 5, paragraph 2, of the

Optional Protecol.

5.2 On 25 October 1988, the Human Rights Committee declared the communication

admissible.

6.1 The Committee notes that in the case under consideration legislation which, on

the face of it, is neutral in that it applies to all persons without distinction,

is said to operate in fact in a way which discriminates against persons of the Sikh

religion. Tha author has claimed a violation of article 18 of the Covenant. The

Committees has also examined the issue in relation to article 26 of the Covenant.

6.2 Whether ons epproaches the issue from the perspective of article 18 or

article 26, in the view of the Committee the same conclusion must be reached. If

the requirement that a hard hat be worn is ragarded as raising issues under

article 18, then it is a limitation that is justified by reference to the grounds

laid down in article 18, paragraph 3. If the requirement that a hard hat be worn

is seen as a discrimination de facto against persons of the Sikh religion under

article 26, then, applying criteria now well established in the jurisprudence of

the Committes, the legislation requiring that workers in federal employment be

protected from injury and electric shock by the wearing of hard hata is to he

regerded as reasonable and directed towards objective purposes that are compatible

with the Cevenant.

7. The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political Rights, is

of the view that the facts which have been placed before it do not disclose a

violation of any provision of the International Covenant on Civil and Political

Rights.