It was Sunday morning and Shimon Lipovenko was on his way to work when the rabbi phoned and asked to meet at a community centre. At the meeting, the cleric wanted to know whether the Toronto man was living with a non-Jewish woman. When he said yes, he was fired.
Mr. Lipovenko was a mashgiach, a supervisor who certifies that food served at banquet halls, hotels or wedding venues follows Jewish dietary rules. The rabbi told him that he had lost the trustworthiness for his job.
He has successfully complained to the Ministry of Labour to get thousands of dollars owed to him, including termination and severance pay. And he has turned to the Human Rights Tribunal of Ontario (HRTO), which will try to mediate the case this fall.
His dismissal raises unusual, compelling legal questions, experts say. They say cases where the employer invokes religious exemptions are rare, and this one is even more intriguing because it pits one religious interpretation against another.
The employer, Kashruth Council of Canada, also known by the acronym COR, is a non-profit agency that issues kosher certifications. It says it had to fire Mr. Lipovenko, otherwise it would have to accept behaviour that violates its religious norms. Mr. Lipovenko failed to follow the Halacha, the Jewish laws which not only dictate dietary rules and prayer practices but also prohibit sexual relationships outside marriage or with gentiles, COR says.
Both sides’ arguments are outlined in filings at the HRTO.
Mr. Lipovenko had worked for COR for six years. By his account, he was to supervise a Sunday event on June 3, 2018, when he received a call from Rabbi Tsvi Heber, COR’s director of community kosher.
They met at the Lipa Green Centre and the rabbi asked whether Mr. Lipovenko was living with a woman who wasn’t Jewish. He replied that his girlfriend was in the process of converting to Judaism.
“I asked him if I should go to the event I was scheduled to do that afternoon, he said no, that I was not going to do any more events for the company as long as I am dating and seeing the non-Jewish girl,” Mr. Lipovenko wrote in his complaint.
He said that he didn’t just suffer financially from his dismissal, but also experienced “hurt feelings, emotional stress and anxiety which [have] disrupted my life.”
He is asking for $30,000, an apology, a letter of reference for future job applications and also that COR be monitored for five years to prevent similar incidents.
COR is invoking Section 24(1) of Ontario’s Human Rights Code, which allows exemptions for religious purposes, provided they are reasonable and genuine qualifications.
Section 24(1) is infrequently applied and usually in education cases, for example when a religious school requires that a teacher practise a faith, Daniel Lublin, a Toronto employment lawyer, said in an interview.
“What makes this case more special is not the employee’s religious adherence but that the relationship he is in calls his qualifications into question.”
David Doorey, a professor of employment law at York University, said the case puts competing religious beliefs before the HRTO.
“An interesting twist here is that the employee has a different interpretation of the religious doctrine than does the employer. He believes that he is in compliance with Jewish law and that who he dates does not disqualify him," Dr. Doorey said.
He said that courts have ruled it isn’t their role to be arbiters of religious doctrine, and that people have the right to sincerely held beliefs, irrespective of religious dogma.
So the onus is on COR to convince the tribunal that its rules are reasonable, Dr. Doorey said.
The HRTO has scheduled a mediation session for Sept. 19. If that does not work, the case would go to a formal hearing.
Mr. Lipovenko also complained to the Ministry of Labour. In addition to asking for overtime, holiday and vacation pay owed to him, he sought termination and severance pay.
COR argued that he was terminated for cause because of his wilful misconduct and being unable to perform his contract, which explicitly said he had to maintain his trustworthiness.
However, an Employment Standards Officer ruled in Mr. Lipovenko’s favour. COR wanted to challenge the decision but eventually withdrew its bid to appeal.
Israel Balter, a lawyer for COR, said in an interview that the decision not to appeal the labour case did not imply that the council had changed its position about Mr. Lipovenko’s dismissal.
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