Loading...
HomeMy WebLinkAboutJacobs 93-12-08BETWEEN: Mohawk College of Applied Arts and Technology, College, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Ed Seymour, Union nominee Ron Hubert, College nominee APPEARANCES: For the Union: Pamela Munt-Madill, Counsel Frans Brinkman, Steward Norm Jacobs, Grievor For the College: J. Lynn Thomson, Counsel Bronwen Morgan, Student-at-law Zakki Ullah, Assistant Director, Employee Relations Lorraine Putnins, Manager, Recruitment and Employment Equity Heard in Hamilton, Ontario, on March 16, June 7 and September 20, 1993. ARBITRAL AWARD The grievance of Norm Jacobs, a'Technologist, relates to his request for time off work with pay to enable him to participate in traditional Hodenoshaunee (or Longhouse) ceremonies. The request was made pursuant to Article 12.2 of the collective agreement, which reads as follows: 12o2 Personal Leave With Pay Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum of disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisor concerned. Leave of absence for personal 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. II A few minutes before the hearing was due to start, union counsel requested that the board allow the grievor to conduct a religious ceremony, described as a thanksgiving ceremony, and to explain its significance. This ceremony and explanation would take place in the hearing room upon the opening of the hearing, and would last for five or ten minutes. Since the ceremony would be - 2 - part of the hearing, the members of the board and the other participants at the hearing would naturally be present during the ceremony. The board was advised that, among adherents of the grievor's religion, meetings always start with a thanksgiving ceremony of the kind the grievor wished to conduct. The board decided (with board member Seymour dissenting) that it would not be appropriate to accede to the grievor's request. It told union counsel, however, that if the grievor wanted to conduct a religious ceremony, in the presence of whoever wanted to participate, before the hearing started, a brief adjournment would be granted for that purpose. This offer of an adjournment was rejected by the grievoro Union counsel asked the board to record in the award the decision not to start the proceedings in the manner sought by the grievor. Since we have recorded the union's request and our decision, we should also explain our reasons for the decision. Our reasons follow. The Canadian Charter of RiRhts and Freedoms declares that everyone has "freedom of conscience and religion" (section 2 (a)). This freedom, which is described in the Charter as a fundamental - 3 - freedom, has been a prominent and zealously guarded feature of Canadian society for many years. In the view of the board, it is not consistent with this fundamental freedom to require anyone, however obliquely or however benignly, to attend at or participate in religious ceremonies of any kind. Just as it is objectionable for there to be any coercion or compulsion towards adherents of a religion to attend or partici- pate in ceremonies of that religion, it is objectionable for any such pressure to be exerted against those who profess other religions or no religion at all. While, to some persons, attendance at the religious ceremonies of other faiths might perhaps appear innocuous or even culturally enriching, it might offend the religious beliefs or principles of others to participate, even passively, in the rites of other religions. Particularly in a multi-cultural society such as Canada, sensitivity towards the religious feelings of others is very important. In our view, it is unacceptable for religious observances, whether of the majority faith or of minority faiths, to intrude into the proceedings of judicial or quasi-judicial bodies and thus be thrust upon persons participating in the proceedings. It is also inappropriate, in our view, for persons who would object to attending at the rites of other religions to - 4 - be placed in a position where they have to excuse themselves and withdraw from the room where the proceedings are to take place. Our decision was therefore not motivated by any lack of respect for the grievor's religion. As we explained to counsel privately, our concern was for the religious sensibilities of other participants at the hearing. In our view, in a society like ours, there is no place for religious observances in the proceedings of quasi-judicial bodies. III The board heard explanations on the grievor's religion and its rites from Mr. Harvey Longboat, Confederacy Chief of the Cayuga Nation, and from the grievor himself. The grievor is a member of the Onondaga Nation, one of the "six nations". He lives on the Six Nations Indian Reservation, Grand River. Given the positions taken by the parties, it is not necessary for the board of arbitration to attempt to explain in detail the beliefs that underlie the ceremonies attended by the grievor. Suffice it to say that the major theme of the ceremonies is to give thanks to the Creator for everything on earth, failing - 5 - which, adherents believe, it will be taken back by the Creator. Thus thanks have to be given for the maple trees (in February), for maple syrup (in March or April), for thunder (in April), for strawberries (in June), for green beans (in August), for small green corn (in August), for big green corn.(in August or September) and for the harvest (in October). In addition, in mid-winter, thanks are given for all the bounty of the preceding year. The seeds are blessed in mid-May prior to b~ing sown. In October or November, there occurs a ritual recitation of the "Code of Handsome Lake", which was a message of encouragement and advice transmitted by the Creator to a person named Handsome Lake in about 1820, dealing particularly with the new reality of the settlement of North America by Europeans. The mid-winter ceremonies commence five nights after the first new moon following the winter solstice (although their start can be moved to five nights following the preceding or subsequent new moon). The dates of the other ceremonies are not pre-deter- mined, but are fixed by the women Faithkeepers in consultation with others. The principal consideration in fixing the dates is to ensure that the ceremonies coincide with the agricultural develop- ments or meteorological phenomena to which they relate. In deciding the precise date on which the ceremonies should be held, the Faithkeepers also try to ensure that as many people as possible will be available to participate. In practice, this has meant that - 6 - weekends are regarded as the optimum time for th~ ceremonies, but some ceremonies last for more than two days or, for other reasons, cannot be scheduled for weekends. In addition, since a large number of people have been unemployed owing to the current recession, some ceremonies have recently been held on weekdays. The recitation of the Code of Handsome Lake does not occur at each Longhouse every year. At a meeting held at Tonawanda, N.Y., each year, it is decided among the different nations where and when the recitation will take place. It is held at the Onondaga Longhouse once every two years. The mid-winter ceremonies last for eight consecutive days, although on some days only a relatively short time is actually devoted to the ceremonies. The October harvest ceremony takes four consecutive days. The recitation of the Code of Handsome Lake occurs over four or five consecutive days. The other ceremo- nies generally last for one day. In all, 31 days (or partial days) per year are devoted to the major ceremonies. The grievor is one of about 15 or 20 Faithkeepers at the Onondaga Longhouse. The role of the Faithkeepers is to ensure that the ceremonies take place and to select people to perform different rituals at the ceremonies. Thus, the Faithkeepers chop wood, clean the Longhouse, hunt deer and prepare meat in preparation for the - 7 - ceremonies. They arrange for people to make the speeches, chant the songs and perform the dances at the ceremonies. They also have to sit and learn the rituals themselves. Attendance at the ceremonies is not regarded as mandatory for each individual. People attend whenever they can. They do not pass judgment on each other or criticize each other for not attending often enough. However, great importance is attached to the rituals being performed and transmitted to succeeding genera- tions. Mr. Longboat added that he would expect Faithkeepers to be present on all the 31 days of the ceremonies. The concept of "high holidays" is not part of this tradition. If people cannot attend all ceremonies, they sometimes choose those which are most impor- tant for them. This is a personal de¢isiono IV The grievor is a Technologist in Audio-Visual Services. In all, there are three technologists in this area. The grievor's work is limited to repairing audio-visual equipment. One of the other technologists works on computers. The third technologist divides his time between repairing audio-visual equipment and repairing computers. If one of them is absent, the other two can look after any urgent work. There is always a backlog of repair orders. Their work area is accessible on evenings and weekends. - 8 - The grievor started full-time employment at the College in 1989, after three years of part-time employment. He was somewhat vague in his testimony about the number of days of vacation leave or lieu time he had taken to attend ceremonies before filing the grievance. However, he testified that recently, as his knowledge · has increased, he has been called upon more often to play a leading role in the ceremonies. In January 1992, after having taken vacation leave to attend the mid-winter ceremonies, he raised the issue of leave to attend religious ceremonies with the union. He wrote a memorandum to Mr. Zakki Ullah of the Human Resources Division requesting "a leave of absence of up to 14 days per year to attend these ceremo- nies''. He testified that Mr. Ullah told him that his request could not be granted since the College was afraid that, if he were granted the leave, other employees would make comparable requests. On March 20, 1992, the grievor filed the grievance. The settlement he requested was that he be "annually granted up to a max of eight (8) days leave with pay for my religious ceremonies and provide a one time letter to bonefide [sic] those ceremonies - this to become retroactive to 2 Jan. 1992". The grievance, by mutual agreement (it appears), was referred immediately to the third step. The union extended the t.ime for the College to reply - 9 - to the grievance, since College officials wanted to do some research on the grievance before replying. Asked to explain why the request in his grievance was for up to eight days of leave per year, the grievor stated that "they wanted a specific number, so I gave them one". He did not have eight specific days in mind. His participation, he explained, depended on the role he was selected to fill at the ceremonies or in preparation for them. He might need to be away from work for as many as 12 days per year, or even more. In the course of discussing the grievance with College officials, he reduced his request to six days of leave in an attempt to settle the matter. Following the presentation of the grievance, Ms. Lorraine Putnins, Manager of Recruitment and Employment Equity at the College, was asked to investigate the validity of the grievor's request. She met, in May 1992, with Mr. Reg Henry of the Woodland Cultural Centre in Brantford, who is a recognized authority on the religion and was, in fact, a person from whom the grievor had learned a lot. She also spoke to her counterparts at two other colleges (Cambrian and Niagara) and at Texaco, an employer known to have a strong focus on employment equity. She discussed the matter with the grievor's supervisor, consulted the grievor's work record and researched the arbitral case-law. - 10- Mr. Frans Brinkman, a union steward, made representations to the College on the grievor's behalf. On the basis of Ms. Putnins' research, Mr. Brinkman calculated that five and one-half days per year would be a reasonable number for the grievor to take off. Specifically, he felt that the grievor would have to absent himself for one day for the Big Green Corn Dance Ceremony in August or September, and for five half-days and two full days during the mid-winter ceremonies. The other ceremonies, according to his interpretation, would likely fall on weekends. Following Ms. Putnins' research on the subject, the emPloyer replied to the grievance on May 15, 1992. The reply reads, in part, as follows: Considering your comments, those of Mr. Brinkman and the notes and comments of Mrs. Putnins, it is the position of the college that your request of up to six days leave with pay for religious ceremonies under Article 12.1 cannot be accommodated. However, respecting your desire to actively participate in the religious ceremonies of the Onondaga Longhouse, the college is prepared to grant up to three days of paid leave per calendar year. This reply was not satisfactory to the grievor, and the matter was referred to arbitration in May 1992. Discussions continued between the parties through the fall of 1992 and some evidence was given about those discussions (without objection being taken thereto by either party). In - 11- particular, the president of the College wrote to Mr. Brinkman in October 1992 to express the view that the appropriate way to accommodate the grievor would be to reschedule his work so that he could take time off from work to attend as many religious ceremo~ nies as he chose and later make up the lost time, presumably by working weekends. V Ms. Munt-Madill, counsel for the union, argued that the College had unreasonably denied the grievor's request, in violation of Article 12.2 of the collective agreement. The only reason given to the grievor for denying his request was that the College did not want to have to grant comparable requests from other employees. This was not a reasonable basis for denying the request. Counsel contended that the case-law relating to Article 12.2 established that an employer is held to a certain standard in reviewing employees' requests for leave. The employer, before denying an employee's request, must act in good faith, must genuinely exercise the discretion, must consider the merits of the request and must take account of all the relevant factors. In the present case, Ms. Putnins only embarked on her review of the grievor's request after the grievance had been filed. Article 12.2 called for serious consideration to be given to a request before - 12- it is denied, not ex post facto in an attempt to justify the denial. The evidence concerning the effect on the College of the grievor's occasional absences demonstrated that there would be no "disruption to the educational programs and services of the College" (Article 12.2). Mso Munt-Madill further argued that, in addition to having no valid grounds for refusing the grievor's request in 1992, the College had presented no evidence at the hearing to substanti- ate its refusal° The offer by the College in the grievance reply of three days of leave per~ year was not supported by any analysis or reasoning. The remedy sought by the union was an order that the gr±evor be granted up to eight days of paid leave per year, retroactive to January 2, 1992. The scheduling of the ceremonies was such that the order should provide some flexibility. Alterna- tively, the board could declare that it would be unreasonable for the College to deny paid leave for a ceremony the grievor wished to attend if the ceremony fell on a workday. It was irrelevant, according to union counsel, that the grievor was a Faithkeeper. Given the participatory nature of the - 13- grievor's religion, no proper distinction could be drawn between his attendance at ceremonies as a participant and his attendance as a Faithkeeper. An employee's desire to ~play a leadership role in his or her religion was, in any event, worthy of recognition under Article 12.2. It was also not legitimate for the College to require the grievor to exhaust his vacation leave or work extra hours before obtaining leave under Article 12.2. Compliance by the College with the Human Rights Code, R.S.O. 1990, c.H.19, did not exonerate it from its obligations under Article 12.2. In the course of her submissions, Ms. Munt-Madill referred to Re Humber College and Ontario Public Service Employees Union (1987), 31 L.A.C. (3d) 266 (Swan), Re Fanshawe College and Ontario Public Service Employees Union (unreported award of arbitrator MacDowell, dated September 3, 1992), and Re Crown in Right of Ontario (Ministry of Labour) and Ontario Public Service Employees Union (unreported decision of Grievance Settlement Board (J. Forbes-Roberts, Vice-Chair) dated July 12, 1988). According to Ms. Thomson, counsel for the College, this grievance was really about scheduling. The College did not dispute the sincerity of the grievor's desire to absent himself from work or the reasonableness of up to eight days of leave per year. Nor did the College contend that this was not a request for religious leave within the meaning of Article 12.2. The grievor wanted a - 14- number of days off work for religious purposes, to which the College did not object. The only difference between the parties was the means whereby this desire could be met. The College's position was that it could accommodate the grievor by changing his work schedule so that he would be scheduled to be off work on the days he had to attend ceremonies and scheduled to be at work on weekends or evenings so as to make up for lost work time. Although the College could work around the grievor's absence on any particular days, any absence would inevitably be reflected in reduced output. If the grievor's work were rescheduled as the College proposed, the grievor would end up working the same number of days as his colleagues and would receive the same salary as them. If the grievance were allowed, on the other hand, the grievor wo.uld work up to eight days a year less than his peers for the same salary, which could not be justified. The grievor, according to the College, did not therefore need religious leave to enable him to attend the ceremonies. According to Ms. Thomson, the College's position was supported by various cases dealing with "the duty to accommodate short of undue hardship" under human rights legislation, namely Ontario Human Rights Commission v. Simpsons-Sears Limited, [1985] 2°S.C.R. 536, Alberta (Human RiRhts Commission) v. Central Alberta Dairy Pool, [1990] 2 S.C.R. 489, Gohm v. Domtar Inc. (No. 4) (1990), 12 C.H.R.R. D/161 (Ontario Board of Inquiry, W. Pentney) - 15- (application for judicial review dismissed by Ontario Divisional Court on March 19, 1992), and Central OkanaRan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, as well as by the following arbitral awards: Re Humber College, supra, Re Civil Service Commission and Nova Scotia Government Employees Union (1989), 7 L.A.C. (4th) 257 (Outhouse), Re Varta Batteries Ltd. (St. Thomas Plant) and Canadian Automobile Workers (1990), 10 L.A.C. (4th) 161 (H.D. Brown), and Re Corporation of the Town of Oakville and Canadian Union of Public Employees, Local 1329 (unreported award of arbitrator Hunter, dated November 18, 1992). Given the ongoing process of investigation and discussion concerning the grievance, it made little sense, according to Ms. Thomson, for the board to focus exclusively on the College's initial .reasons for denying his request. This was particularly so since the grievance seeks to settle once and for all the grievor's entitlement to the leave. The real issue the board of arbitration should decide, according to Ms. Thomson, was whether the College could legitimately take the position that the grievor's desire for time off work should be accommodated by adjusting his work schedule rather than by granting him religious leave with pay. - 16- VI Counsel for the College, at various points in her submissions, expressed the College's position as being that the grievor should be "denied" religious leave since the College could accommodate his desire for time off work by rescheduling his hours of work. There are two ways in which this suggested rescheduling of the grievor's work week could be effected. One way w'ouid be if the grievor's work schedule were to be adjusted so that he is off work on the days he wishes to attend ceremonies; if this occurred, he would have no need for religious leave under Article 12.2. Restated in these terms, the College's position, it appears to us, is unexceptional. As a general proposi- tion, the purpose of leave of any kind is to enable an employee to be absent from work. If the grievor is not required to be at work on a day on which a religious ceremony occurs, he has no need for leave. He has recognized this himself in the case of week-ends: if a ceremony occurs on a week-end, he obviously does not need leave to attend. The board heard no argument to suggest that, in. princi- ple, it would be improper or a violation of the collective agree- - 17- ment for the College to schedule the grievor's work in such a way that any days on which religious ceremonies occur are designated as being weekly days of rest for the grievor. "[S]cheduling of assignments and work" is one of the College's exclusive functions, according to Article 3.1 of the collective agreement. Provided this is done in conformity with the collective agreement and does not undermine rights conferred by the agreement, the College obviously has substantial latitude in scheduling employees' work. We wish to emphasize that we were not referred to any provisions of the collective agreement bearing on the scheduling of days of work. It would not be appropriate for us to examine the agreement ourselves on issues on which no submissions were received and to express any views on whether the agreement would permit the College to reschedule the grievor so that he would be off work on the days of religious ceremonies. For the same reason, we also express no view on whether the grievor would be entitled to premium pay as a result of any such rescheduling. We simply record our view that if, indeed, the College reschedules the grievor's work in this manner in compliance with the collective agreement, the need for religious leave would not arise. Whether it can do so and whether premium pay would result are matters which would depend on the interpretation of other provisions of the agreement, concerning which we heard no submissions and express no opinions. - 18- The other possible mode of accommodating the grievor by rescheduling his work week to which counsel for the College alluded would be by asking him and the union to forego rights conferred by the collective agreement as the price to be paid for the accommoda- tion. Counsel for the College referred us to various human rights decisions where the idea has been endorsed that a union and an employee should be prepared to waive collective agreement rights as a means of facilitating the scheduling of employees' work to enable them to observe their religious obligations. We are reluctant to express any views on this notion for two reasons. Firstly, no specific request has ever been made by the College to the union to consent to the amendment of the agreement or to the waiver of any rights. And secondly, we heard very little argument in support of or against this idea. Our award should therefore not be read as either endorsing or rejecting this concept. In summary, therefore, we do not consider it objection- able, in principle, for the College to reschedule the grievor's work week so that religious ceremonies coincide with days of rest (provided that the collective agreement is fully respected). In this way, the grievor would have no need for religious leave. We - 19- express no views on the notion that the College can deny leave under Article 12.2 on the basis that the parties should "accommo- date'' the grievor's desires by negotiating some deviation from the terms of the collective agreement. The College may find that, for either practical or legal reasons, it cannot adjust the grievor's schedule in such a way that he is off work on days when he wishes to attend religious ceremo- nies. If this should occur, would the grievor be entitled to religious leave pursuant to Article 12.27 As we read Article 12.2, the onus rests on the College to establish that a denial of religious leave was for a valid reason. We draw this from the final words of the clause: "such requests shall not be unreasonably denied". Only one argument was advanced at the hearing on behalf of the College to justify its denial of the grievor's request, namely that an accommodation of the grievor's desires could be found through a rescheduling of his work week. We have already expressed our views on that matter. If the rescheduling does not in fact take place, the College may or may not have other valid reasons for denying religious leave which the grievor might request. We cannot anticipate what circumstances might exist or what reasons might be invoked to deny such requests. It should be self-evident that, if the College does not in fact reschedule the grievor's'work week, it will either have to grant - 20 - his request for religious leave or advance some new valid basis for denying it. This award should therefore not be read as deciding whether the College can or cannot deny the grievor's requests in the future. This brings us to the grievor's January 1992 request for religious leave. Although the College asserts that it could have obviated the need for this leave by rescheduling the grievor's work week, it did not in fact do so. No other valid basis for its decision has been put forward. We are therefore forced to conclude that the College has unreasonably denied the grievor's request in violation of the collective agreement. He is entitled to'compensa- tion. Specifically, we order the College to compensate him in respect of any days on which he actually took unpaid leave, vacation leave, lieu time or any other such leave for the purpose of attending religious ceremonies. The collective agreement envisages that requests for religious leave with pay will be made in advance. Article 12.2 states that "[r]easonable notice shall be given [of leave requests] to the Supervisor concerned". In our view, this makes it impossible for us to grant the grievor compensation for any leave for reli- gious purposes he took before his initial request to Mr. Ullah in January 1992. - 21 - VII The grievance is therefore allowed in part. We order the College to compensate the grievor in respect of any days on which he actually took unpaid leave, vacation leave, lieu time or any other such leave for the purpose of attending religious ceremonies between the date of his initial request to Mr. Ullah and the date of this award. As requested, we remain seized of this matter for the purpose of resolving any disputes about the form or amount of the compensation due to the grievoro DATED at Thornhill, Ontario, this 8th day of December 1993. Michael Bendel, Chair I concur/~-~se~ "Ed Seymour" ~,~' Ed Seymour, ~ Union nominee I concur/~-~se~ "Ron Hubert"~ ~., Ron Hubert, ~ College nominee