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HomeMy WebLinkAboutUnion 00-12-04 CAA T (s) 99D073-74 IN The MATTER. OF AN ARBITRATION LOCAL 561 BETWEEN SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 561 (SUPPORT) AND IN THE MATTER OF A SERIES OF GRIEVANCES CONCERNNG RELIGIOUS LEAVE Kevin Whitaker, Chair Sherril Murray, UnionNominee Jacqueline Campbell, Employer Nominee Appearances for the Union George Richards, Senior Grievance Officer John Dimaras, grievor S.Dimaras, grievor N. Dimaras, grievor M Kalamvrezas, grievor Appearances for the College C. G. Riggs, Counsel M. Fogel, Director of Employee Relations J. Wilson, Personnel Officer, Employee Relations T. Read A hearing was held in Toronto on May 11, 2000 What This Case is About This matter consists of one group andtwo individual grievances. All deal with religious leave. The grievors are members ofthe Greek Orthodox religion. Each grievor requested leave to observe either one or two religious holidays in early 1999. The collective agreement provides for religious leave on a discretionary basis. Initially, leave was denied. The grievors were permitted to take the requested days off without pay. Later, after the two days in issue had passed and during the grievance procedure, the grievors were paid for the time off. There remain outstanding issues between the parties concerning the payment ofvacation credits and the nature of employee obligations where religious leave is granted. The parties have asked us to clarify the appropriate criteria which should govern the exercise of the employer's discretion in granting religious leave. For reasons which follow, the grievances are allowed. The matter is remitted to the parties to resolve the outstanding issues in accordance with this award. We remain seized. II The Facts The grievors are members ofthe Greek Orthodox religion. This is a minority religious faith. The grievors work in the Physical Resources Department. Each grievor requested personal leave with pay, pursuantto Article 12.2 ofthe collective agreement between the parties. Leave was requested to observe either one or both of two holidays celebrated by members ofthe Greek Orthodox religion. The holidays were "Clean Monday" (February 22, 1999 which is the beginning of Lent)) and "The Annunciation" (March 26, 1999). Without leave, the grievor's would otherwise be obliged to work on these days under the provisions ofthe collective agreement. In the case of each request, leave was sought in writing, at least thirty days in advance of the holiday. One ofthe grievors provided the employer with a letter from a priest ofthe Greek Orthodox religion, confirming the legitimacy and religious significance ofthe holidays. Initially, leave was denied but the grievors were permitted to take the time offwithout pay. Later, during the grievance procedure, the employer agreed to pay the grievors for the leave. The college however took the position that the grievors were responsible for making "appropriate arrangements for coverage of your work" in order to obtain the leave requested. There also remain outstanding issues concerning vacation credits. There is no issue as to the bonajldes ofthe grievors' requests. It is the case however that leave was requested not only to attend religious observances strictly speaking, but also to take part in festivities which surround the celebration ofthe religious observances, the latter requiring more leave time than the former. There remains some issue as to the appropriate scope of religious leave where such a distinction may be drawn. Article 12.2 ofthe collective agreement is as follows: 12.2 Personal Leave With Pay Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure amaximum of disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisor concerned. Leave of absence forpersonal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied. Pursuant to this article, the college has developed the following policy guideline governing requests for religious leave: RELIGIOUS LEAVE POLICY -Seneca Update, June 28, 1985 Absence for observance of Religious Holy Days, not designated as statutory holidays, may be granted to a Seneca College employee, consistent with the provisions in the appropriate Collective Agreement or Terms of Employment, upon obtaining prior written approval from the Director of Personnel Services. Such written approval must be recognized at least 30 days prior to the occurrence oflhe recognized Religious Holy Day. The parties put into evidence a chartwhich sets out in part, religious holidays recognized by various religious faiths and whether these holidays fall within the set of statutory holidays for which leave is paid under the provisions of the collective agreement. It is apparent from this chart that the collective agreement provides statutory holidays with pay for most religious holidays recognized by the majority Christian faiths. III Analysis The parties are agreed that the granting of religious leave pursuant to article 12.2 ofthe collective agreement is governed by both the Ontario Human Rights Code (the "Code") and the Canadian Charter of Rights And Freedoms (the "Charter"). Generally speaking, these governing enactments ensure that persons are not to be discriminated against, on the basis ora number of prohibited grounds, including religion. Where discriminatorytreatment is found to exist, either directly or "indirectly", the employer is obliged to accommodate employees who are adversely affected. The role ofhuman rights legislation in protecting freedom of religious beliefinthe workplace is examined by the Supreme Court in some depth in Syndicat de 1 'enseignement de Champlain et al. v. Commission scolaire regionale de Chambly; Commission des droits de la personnedu Quebec, Intervenor(1994) 115 D.L.R. (4th) 609 (S.C.C.). In that case, three teachers of the Jewish religion were not given a day off with pay to observe the religious holiday of Yom Kippour. Their grievance was allowed by a board of arbitration, with the award being quashed by the Quebec Court of Appeal. At page 625 of Chambly, supra Cory J. describes the role of human rights legislation in the protection of freedom of religion in the workplace: Those enactments seek, to the extent that it is reasonable, to provide equity or fairness in the workplace to persons of all religions, races and nationalities. To the vast majority of Canadians their work and place of work are matters of fundamental importance. Fairness in the work place is the desire of all. It is a magnificent goal that is worth striving to attain. Once it has been established that there is adverse effect discrimination flowing from employment rules, procedures or standards, then there must be a reasonable attempt on the part of the employerto accommodate the employees adversely affected. Almost invariably, those adversely affected will be members of a minority group. If there is to be true equality and fairness in the workplace without regard to religious beliefs then it follows, as the night the day, that there must be a duty resting upon the employer to take reasonable steps to accommodate those employees that are adversely affected by the employment rules. This is essential if the aim of human rights legislation is to be fulfilled. Anything less defeats the purpose ofsuch legislation andmakes it ahollow enactment of little value inthe workplace. The analysis adopted by the Supreme Court in Chambly is relatively simple; if members ora minority religious faith must take a day offwithout pay in order to celebrate a religious holiday while the majority oftheir colleagues have their religious holidays recognized as holidays with pay, it is indirect or adverse discrimination. In these circumstances, the employer must take "reasonable steps" short of"undue hardship" (see pages 623 and 627) to accommodate the employees adversely affected. The Supreme Court has in a series of cases, elaborated on the notion of"reasonable steps" in the accommodation of adverse effect discrimination in the workplace. In Ontario (Human Rights Commission) v. Simpsons-Sears Ltd (1985) 23 D.L.R. (4th) 321 S.C.C. ("O'Malley") the Court described the general nature of an employer's obligations in the following terms: The duty ina case of adverse effect discrimination on the basis ofreligion or creed isto take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation ofthe employer's business and without undue expense to the employer. In CentralAlberta Daity Pool v. Alberta (Human Rights Commission) (1990), 72 D.L.R. (4th) 417, at page 439, Wilson J. described the factors which must be considered in determining the extent oP'reasonable" accommodation: I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by 6 adopting those identified by the board of inquiry inthe case at bar fmancial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment ofwhether a given fmancial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude ofthe risk and the identity ofthose who bear it are relevant considerations. This list is not intended to be exhaustive andthe results which will obtain from a balancingofthese factors against the right of the employee to be free from discrimination will necessarily vary from case to case. Applying the analysis in Chambly, it is apparent that the grievors as members of a minority religious faith would be indirectly discriminated against ifthey were required to take a day off without pay in order to celebrate a religious holiday. This is the case because the majority Christian faith holidays fall within the statutory holidays for which leave is granted with pay, under the collective agreement. The question then is what is the employer obliged to do in a concrete fashion where it must accommodate the request for leave with "reasonable steps" short of"undue hardship"? The parties have to some extent, fleshed out in article 12.2, their agreement as to the factors which must be taken into account by the employer in exercising its discretion to grant religious leave. Those factors may be summarised as follows: 1. an "over-riding responsibility" to students means that leave will be scheduled "where possible" to ensure a minimum of disruption to student services; 2. reasonable notice of the request shall be given to supervisors; 3. leave is to be granted at the discretion ofthe employer; 4. Requests for leave shall not be unreasonably denied. It is apparent that these four factors deal with the same types of concerns alluded to in CentralAlberta Dairy Pool, supra. In that case, while making it clear that the list provided was not exhaustive, the Court mentioned the following factors; financial cost, disruption ora collective agreement, problems of moral of other employees, interchangeability of work force 7 and facilities, size of the employer's operation and safety. The existing religious leave policy has been in place since June of 1985. While it may have accurately reflected the range ofconsiderations that the employer should have had regard to at the time, it does not provide much in the wayofpractical direction having regard to the types ora factors which should be taken into account in determining the extent of the employer's obligation to accommodate such requests by taking reasonable steps short ofundue hardship. Given the jurisprudential developments over the past fifteen years, the policy requires updating to preserve its utility. Such a policy should assist both parties by providing certainty as to how the employer's discretion to grant leave is to be exercised. It should as clearly as possible, reflect not only the agreement ofthe parties as manifest in article 12.2, but the considerations which have been established by the courts in interpreting boththe Code and the Charter. In our view, each request for religious leave should be considered separately on its own merits. In deciding whether the request can be granted, the employer must balance the employee's right to be able to fully participate in the celebration of their religious holiday with the employer's need to maintain an adequate level of service to students. Recognizing this reality, the parties made submissions at the hearing which addressed some ofthe practical concerns which arise in this particular work environment. With these in mind, we are ofthe view that religious leave requests under article 12.2 should be granted under this collective agreement wherever reasonably possible having regardto the following factors: 1. the number of employees who request the leave; 2. the number ofdays of leave sought; 3. duties ofthe employees seeking leave; 4. potential disruptions to the work flow; 5. potential risks to others; 6. the granting of leave should not disadvantage or advantage requesting employees over others; 7. the reasonable scope of celebration over and above the performance of religious rites; 8. is the request bonafide; 9. the size ofthe functional administrative unit (school or department); 10. what can the requesting employee do to assist in accommodating the leave request: 11. the notice given by the employee to the employer ofthe need for the leave. Factor "T' recognizes that the festivities which surround the actual performance of religious rites should be seen as 8 legitimate component ofreligious celebration. This principle is acknowledged in Re Humber College and Ontario Public Service Employees Union (1987) 31 L.A.C. (3d) 266 (Swan) at 270-271. That case dealt with the same collective agreement provisions where leave had been sought by a member ofthe Wiccan faith. The board noted that leave should be granted for the celebration component ora religious holiday (as distinct from the mere performance of religious rites) where the employee's "personal benefit" from the holiday would be otherwise "significantly reduced". We adopt this reasoning. Factor "10" does not mean that employees such as the grievors are responsible for fmding other employees to do theirjob while on leave. It does mean that an employee must respond reasonably and in good faith when asked to assist the employer in fashioning an appropriate accommodation. This might mean for example, agreeing to do a necessary task at a different time, or accepting a change in work assignment, as long as such alterations in the workpattern are consistent with the provisions ofthe collective agreement. Concerning the notice requirement in factor "11 ,,, the existing policy requires thirty days. At the hearing, the union did not suggest that this was an unreasonable requirement and we agree. It can be assumed that adherents ofparticular faiths are able to know well in advance when their holidays will fall. It is difficult to understand why this could not be done more than thirty days in advance ofthe day for which leave is requested. The qualifying comments in~t/berta DairyPool, supra bear repeating. The factors we have identified above do not comprise an exhaustive list. Rather, they should be seen as general guidelines that permit other more specific factors to be considered on a case by case basis. The grievances are allowed. The outstanding issues are remitted to the parties to resolve in keeping with our award. We remain seized. Dated at Toronto this 4th day of December 2000, ~ Whitaker ./ "Sherril Murray" I concur Sherril Murray "Jacqueline Campbell" I concur Jacqueline Campbell 10