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HomeMy WebLinkAbout1992-3290.Mostyn.96-11-29 - ..;... = S ONTARIO EMPLOYES DE IA COURONNE 'P CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 3290/92 OLBEU # OLB451/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Mostyn) Grievor - and - The Crown in Right of ontario (Liquor Control Board of ontario) Employer BEFORE S stewart Vice-Chairperson FOR THE J Noble GRIEVOR Legal Counsel ontario Liquor Boards Employees' Union FOR THE M Gage EMPLOYER Counsel Liquor Control Board of Ontario HEARING September 10, 1996 -- ~ ~ DECISION In a grievance dated December 15, 1992, Mr M Mostyn claims reimbursement for the loss of two attendance credits Mr Mostyn is of the Jewish faith. He requested and was granted the day off work for Rosh Hashanah on September 28, 1992 and for Yom Kippur, on October 7, 1992. The leave was granted pursuant to Article 13.1 (a) of the Collective Agreement. In accordance with that provision, Mr. Mostyn was paid for the day, however, two attendance credits were deducted from Mr. Mostyn's attendance credit bank. Credits are accumulated at the rate of 1 1/4 days per month and are ordinarily utilized for the purpose of preserving pay during illness. The Collective Agreement provides for the payout of a portion of accumulated credits under certain conditions. It is the position of the Union that Mr. Mostyn ought to have been granted leave with pay pursuant to Article 13.2 of the Collective Agreement for Rosh Hashanah and Yom Kippur without his attendance credits being affected. The relevant provisions of the Collective Agreement are the following: Article 2 2 l(b) There shall be no discrimination or harassment practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in the ontario Human Rights Code Article 13 13 l(a) The Employer may grant leave-of-absence with pay for not more than six (6) days in any , ~ 2 attendance year as defined in Article 9 1 to an employee upon any special or compassionate ground and the period of the leave shall be charged against the attendance credits of the employee unless otherwise herein provided (b) Up to three (3) days leave under Article 13.1 (a) may be granted for the following reasons: (i) professional, legal and/or medical appointments that cannot be scheduled outside the employees work hours (ii) parental and/or family related responsibilities (c) Leaves specified under 13.1(b) would be subject to the following provisions: (i) the employee applies for such leave at least seven (7) days in advance of the period required, or as soon as such period is known, and; (ii) the leave requested is approved by the employee's immediate supervisor or his/ her designate (d) For the purpose of administration, approved leave specified under 13.1(b) shall be charged against the employee's attendance credits as follows: (i) less than three (3) hours; one-half (1/2) day credit (ii) three (3) hours or more: one (1) full day credit (e) Approval for such leave shall not be unreasonably withheld, however it is understood by the parties that approval may be denied if it disrupts the Employer's operations. 13.2 Leave-of-absence with pay may be granted for special or compassionate purposes, (a) up to six (6) months with the approval of the Employer, and (b) over six (6) months upon the recommendation of the Employer and with the approval of the t? 3 Lieutenant Governor in Council Mr. Mostyn's request for leave for the two religious holidays in issue was dealt with by a policy that had been established by the Employer. The policy is set out in a memorandum from Mr. M Kane, Vice President, Human Resources Division. The memorandum is dated september 17, 1992, and its relevant portions state as follows: All permanent employees are eligible to use twd (2) "Compassionate Days" each year for religious purposes. This policy change is retroactive to and effective october 6, 1991. Employees may have used other earned credits for religious holidays since October 6, 1991. If so, they can apply to have their earned credits reversed to "Compassionate Leave" as long as these compassionate day credits were available. Any credits used for these holidays will be reversed as well. The attached lists identify the religious holidays that will be recognized by the LCBO. These lists were completed in consultation with the OPS and various religious leaders in support of all employees' backgrounds [Emphasis in the original] The attached list referred to in that memorandum includes Rosh Hashanah and Yom Kippur for persons of the Jewish faith. A subsequent memorandum dealing with religious holidays was issued by Mr Kane on October 19, 1992. The relevant portion of this memorandum states as follows: This memorandum is intended to clarify any confusion regarding the use of compassionate leave days. Compassionate leave is a policy t~at exists for both management and bargaining unit employees The Administration Manual (AM-0503-06) is the policy followed for management and excluded employees It allows for three (3) days of compassionate leave in a calendar year The religious holidays policy now permits the use of 2 of those 3 days for religious c;;; 4 purposes as necessary This is recorded as a "c" day on the attendance records Likewise, the Collective Agreement (Articles 13 1 and 43.1 respectively) outlines how special and compassionate leave may be applied for full-time and part-time bargaining unit employees Again, 2 days of the allotment of days of compassionate leave may be granted for religious purposes as necessary for any individual employee. As stated in the collective agreement, these 2 days shall be charged against the attendance credits of the employees. This is recorded as an "E" day on the attendance records. PLEASE NOTE THAT THIS POLICY DOES NOT GRANT ANY EMPLOYEE EXTRA TIME OFF FOR RELIGIOUS HOLIDAYS WHAT THE POLICY DOES IS ACCOMMODATE EMPLOYEES FOR THEIR RELIGIOUS DAYS THROUGH EXISTING POLICY ALLOWANCES. (Emphasis in the original] There were a number of arguments advanced by the Union in support of the grievor's claim, including the argument that to require Mr. Mostyn to utilize attendance credits to take paid leave for religious holidays constituted adverse impact discrimination on the basis of creed in violation of Article 2.1(b) of the Collective Agreement. This argument, along with other arguments advanced by counsel for the Union, has been addressed in a decision of this Board in relation to the ontario Public Service agreement. Re The Crown in right of ontario (Ministrv of Government Services and OPSEU (Kimmel/Leaf) (1991), 21 L A.C (4th) 129 (Kaplan). In that case the grievors were also of the Jewish faith and the issue was entitlement to paid time off for Rosh Hashanah and Yom Kippur The provisions of that collective agreement similarly prohibited discrimination on the grounds set out in the ontario r;:;; 5 Human Rights Code, including creed. As well, that collective agreement provided for leaves of absence with pay upon "special or compassionate grounds". In that case, the grievors were allowed to utilize vacation credits for the religious holidays The Board concluded that the special leave provision and the no discrimination provision of the collective agreement had been violated and that the decision not to grant paid special leave with pay to the grievors constituted adverse impact discrimination giving rise to a duty to accommodate. It was the Board's further conclusion that allowing the grievors to utilize a vacation day and thus be paid for the day did not constitute the necessary accommodation. At pp. 157-159 the decision states as follows: The facts of this case are relatively straightforward. This ministry has a rule that special leave with pay is not "normally" granted for religious holidays. This policy is articulated in the virtually identical letters to each grievor denying their requests, and appears from the evidence to be consistent with the employer's policy generally. This rule is neutral on its face in the sense that it applies to everyone who works at the ministry. It is not, however, neutral in its application. In the instant case, both grievors, who are observant Jews, applied for special leave to celebrate important religious events As members of a minority religious group, the grievors have a special need to obtain special leave This is not a case of an employee seeking special leave for a frivolous non-sectarian purpose; rather, the leave was sought for religious reasons Nevertheless, both applications were denied, and in both cases the grievors were advised that they could either take the days off without pay, or use their vacation credits. Either of these options involved the grievors choosing between attending work and making money and celebrating a holy day of their religious faith Counsel for the employer argued that in presenting these options to the grievors .C;; 6 .the employer discharged its duty to accommodate with respect, we disagree We find that the rule in general had an adverse impact on the grievors because they were members of a minority group. The result of the rule was to discriminate against them on the basis of creed, one of the prohibited grounds in art. A of the collective agreement, by making them choose between a day's wages and the celebration of one of their holy days. As a result of this adverse impact discrimination, a duty to accommodate to the point of undue hardship arose In Gohm v. Domtar Inc. (1990), 12 C.H.R.R. D/161 (pentney), the ontario Board of Inquiry made the following observations with respect to the duty to accommodate, albeit in the context of a ontario Human Rights Code complaint (at para. 96) I find that the duty to accommodate short of undue hardship imposes a duty on employers. . to take substantial or meaningful steps to accommodate the requirements of the complainant This duty defies gene~alization, because each case will involve unique circumstances, but as a general matter I find that the law requires more than a de minimus effort or expenditure on the part of the respondent. As counsel for the Commission pointed out, the very term "undue" hardship itself indicates that there is some hardship that is "due" and it is only hardship that goes beyond this minimum that can be relied upon by a respondent as a defence It would be inconsistent with the purpose of human rights law to prohibit adverse effect discrimination and at the same time to interpret the defence of reasonable accommodation short of undue hardship in such a manner that virtually any desultory effort to meet the complainant's needs, or any minimal expense, would be sufficient to justify the challenged rule of practice The evidence indicates that the duty was not met in the instant case. Offering the grievors their pre-existing entitlement does not constitute an accommodation. In our view, as in Simpsons-Sears, the employer has an obligation, once adverse impact discrimination is established, to demonstrate that it has attempted accommodation up to the point of undue hardship In the instant case it could perhaps be argued that the employer made some accommodation efforts in the sense that it offered the grievors the option of taking the days off without pay, or taking holidays on the days in question This, however, is not an accommodation, for the result of this "accommodation" I'. , ~ 7 is discriminatory to the grievors and any accommodation must be directed at the elimination of discrimination. There was no suggestion on the part of the Employer that this decision was incorrectly decided. Rather, it was the position of the Employer that the facts of that case are distinguishable from the facts of the case at hand. In particular, Ms. Gage argued that unlike the situation in Kimmel/Leaf, where the grievors were given the option of taking a vacation day, thereby being offered only pre-existing entitlement, the grievors were offered the opportunity to utilize attendance credits, which they would normally only be able to utilize in cases of illness. It was emphasized that while the Collective Agreement contemplates paid special or compassionate leave without the necessity of utilizing any kind of credit, the utilization of attendance credits in the case of special or compassionate leave is also specifically contemplated by the agreement of the parties in Article 13.1(a). The fact that the Collective Agreement contemplates that special or compassionate leave may be granted where attendance credits are utilized, as well as with pay and thus without the necessity of utilizing credits of any kind, does not, in my view, distinguish these facts from those before this Board in the Kimmel/Leaf case The essential factual finding which compelled the Kimmel/Leaf board to conclude that there had been adverse impact discrimination was that there was a rule that special ~ 8 leave with pay was not normally granted for religious holidays In the case at hand the Employer has similarly established a policy or a rule providing that special leave with pay will not normally be granted for religious holidays. Accordingly, I am not persuaded that I ought to reach a conclusion different from that reached in Kimmel/Leaf as to the existence of adverse impact discrimination. The next issue to be addressed is whether there has been appropriate accommodation by virtue of the grievor being entitled to utilize his attendance credits to keep his pay whole for the religious holidays in issue here. In Kimmel/Leaf, in the concluding portion of the excerpt reproduced supra, it was concluded that allowing utilization of vacation days did not constitute accommodation as it was: "... discriminatory to the grievors and any accommodation must be directed at the elimination of discrimination.". The fact that attendance credits are ordinarily available only for illness does not, in my view, distinguish this case from Kimmel/Leaf. A requirement to use credits, whether for vacation or attendance, depletes credits which would otherwise be available to the employee In my view, allowing an employee to utilize attendance credits to preserve pay for religious holidays is not distinguishable in principle from allowing an employee to utilize vacation credits for that purpose. Accordingly, it is my conclusion in this case, as in Kimmel/Leaf, that allowing the use of attendance credits does not . "", ;"P 9 constitute the necessary accommodation For the foregoing reasons it is my conclusion that the Employer has violated Article 2.1(b) of the Collective Agreement in determining that Mr. Mostyn was not entitled to paid leave pursuant to Article 13 2 of the Collective Agreement. I now turn to the issue of remedy. Ms Gage submitted that if I were to conclude that there had been a violation of the Collective Agreement, the appropriate remedy would not be to hold the Employer solely responsible for the violation. In this regard Ms. Gage referred me to Central Okanagan school District No. 23 v. Renaud [1992] 2 S C.R. 970, wherein the Supreme Court of Canada determined that the Union was jointly liable, with the Employer, in the case of a finding of adverse impact discrimination. In that case, the complainant was a Seventh-day Adventist whose work schedule, prescribed by the collective agreement, included a Friday evening shift His religion prohibited him from working that shift The Union refused to consent to a shift schedule which would result in an exception to the provisions of the collective agreement and the complainant's employment was terminated when he refused to work on Friday evenings I am unable to accept Ms Gage's submission that the same conclusion ought to apply here While the Union is a party to a ~ ~ '~ 10 Collective Agreement that does not specifically and directly provide for the accommodation of persons in the grievor's circumstances, this is not a case where the Union has presented a barrier to an accommodation It is within the Employer's ability to accommodate the grievor within the terms of the Collective Agreement and it is the position of the Union that it should do so. Accordingly, I see no basis for departing from the approach taken in Kimmel/Leaf. The Employer is to reinstate Mr Mostyn's attendance credits for the days in issue. I retain jurisdiction to deal with any difficulties the parties may experience in the implementation of this decision. Dated at Toronto, this 29th day of November, 1996. ~~ S.L. tewart - Vice-Chair ~