The Kashruth Council of Canada, better known as COR, has been ordered to pay a former mashgiach nearly $13,000 in termination and severance pay, after it fired him for dating a non-Jewish woman. Together with missing overtime pay, public holiday pay, administrative costs and penalties, COR was ordered to hand over more than $19,000.
Joel Graham, an employment standards officer operating under the authority of the Ontario Ministry of Labour, ruled against COR on every issue brought before him.
Reviewing Shimon Lipovenko’s history of employment with COR, which lasted about six years, Graham found that the former mashgiach was not given adequate time for meals, that he was not paid sufficiently when he worked overtime, that he had to work more hours per week than is permitted by law and that his vacation pay was less than required.
Graham also found that COR had contravened two previous compliance orders – related to work hours, vacation time and record-keeping – triggering $700 in penalties. Together with $4,500 in overtime and holiday pay and $1,743.31 in administrative fees, COR was ordered to pay $19,876.50 in total.
COR said it would appeal the ruling.
Graham found that COR failed to prove its contention that it had terminated Lipovenko’s employment for cause after he breached the terms of his contract by dating the woman.
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“The claimant’s (Lipovenko’s) employment contract contained clauses relating to maintaining neemanut, or a presumption of religious reliability,” Graham noted.
“The employer alleges that by the claimant engaging in a sexual relationship outside of marriage with a non-Jewish woman, he was guilty of wilful misconduct and had also frustrated his contract.”
While “wilful misconduct” is an exception to the rule that employers must provide severance pay and termination pay in lieu of notice, Graham found that COR did not make a sufficient case to warrant such an exception.
“The onus is on the employer to establish on a balance of probabilities that the claimant engaged in behaviour constituting wilful misconduct, disobedience or wilful neglect of duty that was not trivial and not condoned by the employer.
“In my view … the employer has not met their onus to establish on the balance of probabilities that the claimant’s behaviour constituted wilful misconduct. Accordingly, I find that the wilful misconduct exemption does not apply,” Graham wrote.
The Kashruth Council declined to comment on the specifics of the case. However, COR’s managing director, Richard Rabkin, said that, “The Kashruth Council of Canada fully complies with the Employment Standards Act, 2000. An Ontario Labour Relations Board (OLRB) decision that changed how COR remunerates and handles hours-based sections of the Employment Standards Act was handed down at the end of July 2017, after which COR updated our processes to be in line with the OLRB’s decision. A significant portion of the finding by the officer pre-dated this decision.
“All mashgichim must comply with halakhah, or the Orthodox interpretation of Jewish law, in order to maintain their status of trustworthiness, or neemanut, to act as a mashgiach, as stipulated in halakhah. That is a condition of their employment, which is consistent with the religious mandate of the Kashruth Council of Canada.…
“COR recognizes that our mashgichim are on the front lines of kosher certification and supervision. They are the lifeblood of our organization and our community. Without their hard work and dedication, kosher consumers would not have access to kosher-certified food at the high standards for which COR is known.…
“As the recent finding encroaches on the centrality of neemanut in the role of a mashgiach, we will be appealing the finding.”
Lipovenko declined to comment on the case, though he acknowledged that he had also filed a complaint against COR with the Ontario Human Rights Commission.
