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Employer Ordered To Pay $27,000 To Employee Who Would Not Work On Sabbath

Published 01 Apr 2014

AFFCO New Zealand Ltd (“AFFCO”) has had to pay $12,118.00 for the loss of wages and $15,000.00 to Mr Nakarawa for humiliation, loss of dignity and injury to feelings for discriminating against Mr Nakarawa for reason of his religious beliefs.


Mr Nakarawa obtained employment for AFFCO as a casual Employee and was required to work on the night shift and to work overtime on Saturdays. However as a member of the Church of God, Mr Nakarawa believes in accordance with the Fifth Commandment to observe the Sabbath. This means that no paid employment must be engaged in during the period between sunset on Friday and sunset on Saturday.

In the pre-employment questionnaire, Mr Nakarawa indicated that he was prepared to work overtime on the understanding that this was voluntary. He also indicated that he wished to work day shifts. A pre-employment interview took place and Mr Nakarawa was asked if he could work overtime which he responded positively. Mr Nakarawa also asked if he could be allocated to work on the day shift. Mr Nakarawa was offered the job.

Mr Nakarawa received a phone call telling him to report to work. After an induction and touring of the factory, workers lined up in from of the plant manager’s office to sign their individual employment agreements. The plant manager quickly addressed the agreement and asked Mr Nakarawa to sign it. Mr Nakarawa was not given an opportunity to read it first. He was not given a copy but after requesting one to be provided, he received a copy two days later. On the first Friday of his duties, Mr Nakarawa was ill.

On the following Wednesday, Mr Nakarawa said that he was unable to work on Saturdays due to religious reasons. However, the supervisor indicated that as Mr Nakarawa had indicated that he would work overtime that this included Saturdays. Mr Nakarawa said that he was willing to work overtime generally but had never been asked specifically about his availability on Saturdays.

It was argued for AFFCO that as Mr Nakarawa had deliberately failed to disclose his inability to work on the Sabbath in order to secure a position at the AFFCO plant. It was argued that Mr Nakarawa was employed on a casual basis and had not been terminated. There is simply no expectation of ongoing employment. Rather, Mr Nakarawa remained on the books. In fact, it was argued that had the Mr Nakarawa disclosed that he could not work on the Sabbath at the interview stage that he would not have been employed. AFFCO was not concerned with the reasons why a person could not do overtime. AFFCO was only concerned whether the individual could meet the needs of the plant. This was based solely on the needs of the company.


The judgment found that the Production Manager “demonstrated a dogmatic and inflexible attitude to Employees, overtime and Saturday work. The interests of the company were to be served. The particular circumstances of the individual counted for nothing.” The Production Manager showed “an almost complete lack of understanding of the prohibition on discrimination.” There was a duty to accommodate Mr Nakarawa’s request subject to the unreasonable disruption limitations. The Tribunal held that if working overtime during the week was of such critical importance this should have been made unambiguously clear not only on the application form but also at the interview.

It was held that right to manifest one’s religion or belief in worship, observance, practice and teaching is an integral component of freedom of religion. The Tribunal found that “there can be no doubt that the reason for the termination of Mr Nakarawa’s employment was his obedience to the Sabbath.” In such circumstances, the Employer must offer a real, acceptable solution to the potential victim of discrimination. AFFCO’s inflexibility was not in good faith. An order was made that under the Human Rights Act 1993 that AFFCO was to provide training to its management staff in relation to obligations under the Human Rights Act 1993.


For Employers, at the pre-employment stage it is critical to clarify terms like “overtime” and whether this is voluntary or compulsory.

It is bad practice to give the Employee the employment agreement on the first day of work as this is not likely to comply with the Employment Relations Act which requires an employer to provide an Employee with a copy of the intended agreement under discussion, advise the Employee that he or she is entitled to seek independent advice about the intended agreement, give the Employee a reasonable opportunity to seek that advice and consider any issues that the employee raises and respond to them.

Once the Employee is in the workplace, reasonable accommodation of the contended ground of discrimination must be found. Section 28(3) of the Human Rights Act 1993 provides Employers with an exemption from the discrimination provisions where there is unreasonable disruption to the Employer’s activities. However, in this case the Tribunal held that AFFCO had failed to genuinely consider accommodating Mr Nakarawa’s request to not work on the Sabbath and therefore AFFCO could not rely on this exemption.

For in-depth information on employing staff, including the process and forms (e.g. pre-employment questionnaire containing questions you can legally ask a candidate), please refer to the "How to Employ Staff" ebook which Employer Support Package subscribers can download from the "Library" tab of the Employers Toolbox [ ]. 

How to Employ Staff is available for non members to purchase from the following link 
How to Employ Staff 

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Purchasers of the "How to Employ Staff" ebook will also be emailed a complementary employment agreement template.