Mark-Paul Cowan | Andrews' sex policy defensible
My contribution, in last Sunday Gleaner's front-page story, to the debate on Andrews Memorial Hospital workforce policy, including sanctions for fornication and adultery, was only for the purposes of giving a legal perspective on morality clauses, or honour codes, as they are commonly referred to.
I take no stance on principle with the hospital, and I express no views on the efficacy or the alleged backwardness of its values. I certainly would not condone the degrading treatment of persons required to enter their place of work through the back door out of shame.
My focus is on the simple question of whether parties can agree in law to be bound by stipulated codes of conduct relating to lifestyle.
For context, Andrews Hospital is a private entity operated by the Seventh-day Adventist Church. It ought not to be treated as an apparatus of the State. Our Charter of Fundamental [qualified] Rights and Freedoms may provide for the application of rights as between private individuals, but the wording suggests that a charter right may not apply to a private citizen at all, or it if does, it may not apply to the same extent as it would to the State.
In any event, it is difficult to say which charter right is being infringed in this scenario. There is an argument of discrimination against women, which perhaps would not apply if the hospital can demonstrate that the lifestyle policy would have uniform application across the board.
This is a unique case because we are talking about the freedom of contract in a democratic society. We are talking about competing rights and interests. Employers will always have what may be perceived as onerous rules/codes of conduct that impact on the 'rights' of employees. Employers want to tell you how and when to talk; how to dress; when you must show up to work on weekends without consideration of your Sabbath!
Sometimes, these rules have nothing to do with your job description or performance, but they are there to be observed if agreed to by the parties beforehand. It ought not to be readily inferred that a term in a contract freely entered into between consenting parties is oppressive, unfair, or unconstitutional.
Private persons are generally free to set the terms of their bargain (illegal or immoral purposes aside) and, once struck, must faithfully honour them.
So then, what illegal purpose is being achieved with the implementation of an honour code against premarital sex or adultery where the de facto employer is the Church? What piece of legislation or common-law rule is being infringed? Citing the Maternity Leave Act is of no moment as the prohibited conduct here is not pregnancy. There have been decided cases where courts have recognised a distinction between being dismissed because of pregnancy and being dismissed as a result of prohibited sexual conduct, which has been evidenced by the fact of a pregnancy.
Another factor one has to consider is that disciplinary action is not tantamount to dismissal. It may be that in the vast majority of cases where there is an infraction of a morality clause, dismissal is simply not a proportionate sanction in the first instance. The Industrial Disputes Tribunal could rule the sanction of dismissal as unfair, depending on the circumstances of a case, but this does not mean that the particular clause would be illegal, void, or unenforceable.
It may be that the foregoing issues need to be ventilated and clarified before our Constitutional Court to test and explore what is still a very young Charter of Rights (2011), but it is by no means a foregone conclusion that a private person in law is prohibited from formulating codes of conduct for employment based on denominational causes.
- Mark-Paul Cowan is an attorney-at-law at Nunes Scholefield DeLeon.