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HomeMy WebLinkAboutUnion 11-02-10 IN THE MATTER OF AN ARB!TRATION BE1'WEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the IIUnion") - AND - SENECA COLLEGE (the "College") AND IN THE MATTER OF A UNION POLICY GRIEVANCE REGARDING REL!GIOUS LEAVE (OPSEU GRIEVANCE #2009-0561-0014) BOARD OF ARBITRATION Robert D. Howe, Chair Pamela Munt-Madill, Union Nominee Carla Zabek, College Nominee APPEARANCES For the Union Robin Gordonl Grievance Officer Janice Hagan Esther Balevi John Dimaras For the College Brenda Bowlby, Counsel Cindy MacDonald A hearing in the above matter was held in Markham, Ontario, on December 3, 2010 and January 5, 2011. AWARD This award pertains to a Union policy grievance regarding the College's Religious Observance Policy (the IIPolicyll}, a copy of which is appended to this award. It is the Unionts contention that the Policy breaches the College's obligations under the Ontario Human Rights Code (the IICodell) and the applicable collective agreement (the "Agreement"). The grievance and the Policy were entered as exhibits in these proceedings on the agreement of counsel! who advised the Board of Arbit~'ation (the IIBoardll) that no pl.eliminary objections would be advanced and that nb evidence would be called as they had agreed to proceed directly to making their submissions on the rnerit9 of the grievance. The provisions of the Agreement referred to during the course of those submissions included: 2.3 Ontario Human Rights The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the" Union or the College because of race, ancestry! place of origin! colour, ethnic origin! citizenship! creed, sex! sexual orientation, age, records of offences! marital status, same-sex partnership status, family status or handicap. Accommodation! if it is requested by the employee and it is determined to be required! is the duty of the College, the Union and the employee. 12 . LEAVES 12.1 Pe~sonal Leave Without pay Leave of absence without pay may be granted by the College for legitimate personal reasons. 1 12.2 Personal Leave With Pay Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum disruption to the educational programs and services of the College. Reasonable notice shall be given to the supervisor concerned. Leave Of absence for personal re~sons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and 8uch requests shall not be unreasonably denied. Reference was also made to Article 6.2.1 (which provideo for an overtime rate of time and one-half to be paid for authorized work performed over the employeels normal daily hours, over the employee's normal weekly hours, or on an employeetg sixth day of work in a work week), Article 6.2.2 (which provides for a double overtime rate to be paid for authorized work performed on an employeele seventh day of work in a work week}, Article 6.2.4 (which gives employees the option of electing to receive time off in lieu of payment for overtime worked), Article 6.2.5 (which contains provisions regarding notice and distribution of over.time), Article 6.3.2 (which specifies for shift rotation purposes the time which the College shall endeavour to schedule between the end of a shift and the commencement of. a new shift), and Article 7.5 (which provides for a shift premium of 75 cents per hour for all regular hours worked between 5:00 p.m. and midnight, and one dollar per hOUl,M for all regular hours worked between midnight and 6:00 a.m.). The policy was prepared by the College and became 2 effective at the commencement of the Fall Semester of 2009. It applies to all of the College1s staff, including the Support Staff employees in the bargaining unit covered by the Agreement. Paragraph 5 (of the Policy's Administrative Guidelines) is in the process of being revised to provide that no paid religious leaves will be granted without the approval of the College1s Human Resources Services (to ensure consistency across the College), and to delete the reference to "two" days. Summary of Submissions Made on Behalf of the Union Under the Agreement and the Code, the College is required to accommodate to the point of undue hardship employees \"ho are members of minority faiths whose reI igious observance days fall on days that are part of their work schedule. The Policy breaches the College's obligations under the Agreement and the Code. The provisions of the Agreement, and in particular Article 12.2, are very important in determining appropriate accommodation. What constitutes undue hardship has to be determined in this case in the context of the Agreement which containsgpecific language providing the possibility of religious leave without loss of pay. The Policy reduces the religious leave benefit negotiated by the parties and unduly fetters the College1s discretion to grant that leave under Article 12.2 by making it the benefit of very last resort and almost impossible to obtain. Article 12.2 specifically provides for religious leave. Although the College has a discretion, the provision 3 stipulates that requests for religious leave I1shall not be unreason<;lbly deniedll. It is not an automatic entitlement, but it needs to be fairly considered. The Union is not opposed to the College having a religious observance policy. However, the Union1s key concern with the Policy as currently written is that it runs afoul of the Code and of Article 12.2 of the Agreement by making paid leave for religious observahce the absolutely last resort option that will be considered by the College. Paid religious leave is not included in the four examples listed in the third paragraph of the policy Statement portion of the Policy. The union has no issue with paragraphs 1, 2, 3, 6, 7! and B of the Policy'S Administrative Guidelines, but it does have major concerns with paragraphs 4 and 5. The first two options listed in the paragraph 4 indicate that the employee would be paid at the employee's Jlregular ratefl, So no premium would be paid to the employee. Using an earned benefit such as vacation days is inap~ropriate as it further disadvantages the employee. The sixth option of taking a leave of absence without pay clearly does not achieve the stated goal of avoiding 108s of pay. Those six options appear to be set out in a prioritized manner. Paid leave is not even listed as a possibility. That clearly indicates that it is only to be considered after all of the other possible options. The Union also has a concern with paragraph 5 of the Administrative Guidelines. Although it indicates t.hat the 4 College may approve a paid leave of absence for religious observance, it clearly specifies that paid leave will not be considered until all othel.' options have been considered and reviewed by the College and the employee, and there is no reasonable alternative identified as operationally feasible, It is difficult to imagine a scenario in which none of the options listed in paragraph 4 ...muld be possible. Even in the absence of the Code! this is not an appropriate formulation of when paid religious leave will be considered. Although paragraph #5 is in the process of being revised to delete the reference to two days, its current inclusion of a two-day cap clearly lAuns afoul of Article 12.2! which makes no reference to a hard cap of two days. The Policy also requires supervisors to bargain directly with individual employees regarding the waiving of overtime premiums, shift premiums, and other entitlements under the Agreement, without Union involvement. This could potentially result in the waiver of employees' rights and benefits under Articles 6.2.1! 6.2.2, 6.2.4( 6.2.5, 6.3.2( and 7.5, It is inappropriate for the college to have a policy directing supervisors to bargain directly with employees regarding such waivers, without Onion involvement. This rune afoul of the Union's right! as the employees' bargaining agent, to oversee the application a.nd enforcement.:. of the Agreement.:.. If Article 12.2 is construed grammatically! the phrase "in extenuating personal circumstancesll modifies only 5 lIspecial leave", and does not modify "religious leavell. Although there is some logic to the cases which have found that the phrase modifies 11 (l]eave of absence for personal reasons II (in that the parties awkwardly used similar terminology in both Article 12.1 and 12.2 in relation to leave~ of absence for personal reasons), those cases do not address religious leave. The cases which do address religious leave make no reference to that phrase. The Union's position is that "religious leavetl is not modified by the phrase l1in extenuating personal circumstances". If Hreligious leave II is modified by that phrase! the Union's alternative position is that this makes no difference because the meaning which has been given to that phrase has no application to "religious leavell, and that phrase does not import into Article 12.2 the need to consider all other options before religious leave with pay will be considered. Treating religious leave differently from leave of absence for personal reasons or special leave in extenuating personal circumstances is not reverse discrimination. There is a difference because, unlike religious leaves! in many instances leaves of absence for personal reasons or special leaveD in extenuating personal circumstances will not involve legal obligations under the Code. Employees who lose work time becauoe of religious observance should receive premium pay if the hours which they work to make up that lost work time attract premium pay as they suffer the disadvantage for which the premium is intended to compensate (such as working 6 in the evening or working a twelve-hour day). Payment of those premiums falls within the scope of the College's duty of accommodation. The caSeS referred to by Ms. Gordon during the course of her submissions on behalf of the Union included Seneca College and OPSBU, Local 561 (Grievances Concerning Religious Leave), unreported award dated December 4, 2000 (Whitaker); Re HrJlnber College and ontario Public Service Employees Union (1987), 31 L.A.C. (3d) 266 (Swan); Commission scolaire regionale de Chambly v. Bergevin, (1994] 2 S.C.R. 525; OPSEU (Kimmel/Leaf) and The Crown in Right of ontario (Ministry of Government ServiCes), unreported 8SB award dated Octobe~ 7, 1991 (Kaplan); Re Board of Education for the Borough of York ~nd Borough of York Women Teachers' Association (1985)! 20 L.A.C. (3d) 366 (Swinton); Re Sherbrooke Community Society and Saskatchewan Union of Nurses, Local 22 (1981)! 2 L.A.C. (3d) 97 (Norman); Loyalist College and Ontario Public Service Employees (Grievance of John McPeak)! ~nreported award dated lJanuary 2, 1990 (Kruger) i and Ontario Public Service Employees and Fanshawe College (Grievance of sid Skinner), unreported award dated September 3, 1992 (MacDowell). During the course of her reply submissions, Ms. Gordon also referred to and sought to distinguish a number of the cases relied upon by counsel for the College, She submitted t hat On tario Nurses' ASBocia tion v. Orillia Soldiers Memorial Hospital, infra, dealt with the issue of whether or not there was discrimination, rather than with the very 7 different issue of whether there has been accommodation to the point of undue hardship for what is acknowledged to be indirect discrimination. Suwnary of Submissions Made on Behalf of the College It is a fundamental term of employment that an employee has an obligation to report for work. An employee who does not report for work is not entitled to be paid unless a compensation package has been negbtiatedwhich provides to the contrary. Where an employee needs to take a religious holiday because religious beliefs require attendance at religious rites that day, the requirement to attend work discriminates against that employee indirectly or constructively on the basis of creed. Granting leave to enable the employee to observe the religious holiday is the usual accommodation provided! but the employee is not entitled to such leave as a matter of right. The request can be denied if it cannot be accommodated without undue hardship. Since income io earned, accommodating a request for religious leave does not include a requirement to provide paid leave! except where a specific benefit providing for paid leave for religious holidays has been negotiated as part of the compensation package. The adverse impact on the employee is not that the employee loses paYI but that the employee is unable to work. The employer's obligation to accommodate the employee's loss of work time can be met by permitting the envloyee to make up the lost work time by working at a different time. 8 In this case, ab~nefit has been negotiated but it is not an entitlement. Article 12.2 does not provide for an automatic right to religious leave with pay. It requires that a balancing take place! and provides Ear paid leave only in "extenuating personal circumstances". That phrase modifies not only "special leave" but also "leave for personal reasons" and IIreligious leavell, If religious leave were granted differently from special leave or leave for personal reasons, that would create reverse discrimination. IE the parties had intended religious leave to be treated differently from other types of personal leave, religious leave would have been given its own article. The use of the word flextenuatingll indicates that in order to come within the ambit of Article 12.2 there must be something extraordinary, unforeseeable! or beyond the employeels personal control. The onus is on the employee who is requesting leave under that provision to establish that there are extenuating circumstances and that there is no other way to accommodate the employee. Religious leave is generally expected, foreseeable, and able to be accommodated in ways other than granting paid leave. However, there may be situations in which an employee may be unable to make up for the lost work due to extenuating cirCulllstances. The eleven factors listed by Article ~~hitaker in Seneca College and OPSEU! Local 561 (Grievances Concerning Religious Leave), 81lpra, should be taken into account by the College in determining whether to grant paid leave. 9 The Agreement does not preclude the College from implementing the Policy or from setting out administrative guidelines to ensure consistency in the College's exercise of its discretion. The Policy does not fetter the College's discretion under Article 12.2. The options listed in the Policy are not prioritized. Since the Code overrides the Agreement insofar as obligations imposed by the Code conflict with the Agreement, in the search for accommodation the College may ignore collective bargaining principles that conflict with the Code. The Union has an obligation to cooperate with the College in accommodating an employee!s needs. The Policy is silent on the issue of Union involvement, but does not preclude it. Accommodation may require provisions of the Agreement to be overridden. It would not be fair for an employee making up for work time lost due to religious observance to be paid overtime or shift premium. This would give the employee a right that other employees do not have. Article 6.1.4 provides for flexible hours of work and scheduling arrangements to be implemented with the approval of the affected employees, where the College and Local Union agree. It stipulates that such agreements shall not provide a monetary advantage or disadvantage to the College or to affected employees relative to employees working regular houre. The cases referred to by Ms. Bowlby during the course of her submissions on behalf of the College included Ontario Nurses I Assocla tion v. Orillia Soldiers Memorial Hospital 10 (1999), 42 O.R. {3d) 692 (C.A.); Re Cambridge Memorial Hospital and O.N.A. (Butts) (1999) 79 L.A,C. (4th) 392 (Barrett); Re O.P.S.E.U. and O.P.B.S.U. (Law) (2001), 97 L.A.C. (4th) 279 (Mitchnick); Re Maple Leaf Foods arid U,F.C.W. Locs. 175 &- 636 (2001)! 98 L.A.C. (4th) 40 (Whitaker); Boundy v. Ontario (Children and Youth Bervices), 2009 HRTO 1667 (Brennenstuhl); Commission scolaire regionale de Chambly v. Bergevin, supra; Markovic v. Autocom ManufClctul'ing Ltd., 2009 HRTO 64 (Liang); Central Okanagan School District No. 23 v. Renaud, (1992) 2 S.C.R. 970; Richmond v. Canada (Attorney General), [1977J 2 F.e. 946 (e.A.); Ontario (Ministry of Community and Social services) v. O.P.S.E.U. (2000), 500.R. Od) 560 (C.A.); Toronto (city) and C.U.P.E., Loc. 79 (Silver-~vinick) (2003), 117 L.A.C. (4th) 363 (Tacon); ontario (Ministry of community and Social Services) v. Grievance Bettlement Board (2000), 500.R. (3D) 560 (C.A.); Confederation College and ontario Public Service Employees' ffiJion (Grievance of Thelma Smith), unreported award dated August 11, 1982 (OIShea); Loyalist College $.nd Ontario Public Bervice Employees! Union (Grievance of Sandra Novroski), unreported award dated September 16! 1996 (H.D. Brown); Georgian College and Ontario Public Service Employees' Union (Grievance of J. peacock), unreported award dated April 6, 2001 {Saltman}i Fanshawe College and ontario Public Service En~loyeeB' Union (Grievance of Louise watt), unreported award dated February 15, 2006 (OINeil); Centennial College and ontario Public Service Employees' Union (Grievance of Colleen 11 Purchase)! unreported award dated February 14, 2007 (Simmons); Centem1ial College i'md Ontario Public Service Employees r Union (Grievance of Yvonne Glenville), unreported award dated May 14, 2007 (Bendel)j Centennial College and Ontario Public Service Employees' Union (Grievances of Sandra McEachran), unreported award dated June 13, 2008 (MacDowell); Sheridan College and Ontario Public Service Employees' Union (Grievance of Mary Cator)! unreported award dated November 23, 2009 (Bendel); Sheridan College and Ontario Public Service Employees' Union (Grievance of N), unreported award dated December 7, 2009 (simmons); Seneca College and OPSEU, Local 561 (Grievances concerning Religious Leave) I supra; Brewery, General and Professional Workers' Union (Service Einployees International Union! Local 2) v. McMaster University, 2009 CanLII 4982 (Anderson); Re Heal th Cltre Corp. of St. John '8 and N.A.P.E. (2002), 103 L.A.C. (4th) 227 (Christie); and Re Natrel Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and A.llied Employees, Teamsters Lac. 647 (2004), 129 L.A.C. (4th) 419 (Herman). Decision As indicated above, through Article 2.3 of the Agreement the parties have agreed IIthat in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the College because of ... creedll. In Markovic v, Autocom Manufacturing Ltd.! supra, Adjudicator Liang wrote, in part, as follows regarding that proscript,on and the measures which 12 may be required to be taken to avoid its violation: [26] Under section 5(1) of the Code, every person has the right to equal treatment in employment without discrimination on the basis of certain grounds, including creed. IICreed" is not defined in the Code but encompasses! at the very least! organized religion that is accompanied by established practices and observances. [27] Sometimes the requirements of employment conflict with the ability of employees to practice their religion, often through the establishment of work Dchedules \...hich, although adopted for valid business ).~eason8, unintentionally impinge upon religious practices. There is a significant body of court and tribunal decisions which have dBalt with resolving conflicts between the demands of employment and the freedom to practice religion. Many years ago the Supreme Court of Canada, in Ontario Human Rights Commission v. simpsons-Sears, 1985 CanLII 19 (S.C.C.>, [1995] 2 S.C.R. 536 (Sin~Bons-Sear8) established that an employer has a duty to take reasonable steps to accommodate an employee who is unable, because of religious beliefs, to work in accordance with the established work schedule. [28] More recently, in Chambly, above! the Sllpreme Court upheld the decision of an arbitration board ordering a school board to permit Jewish teachers to use days of paid absences provided under a collective agreement, for observance of Yom Kippur. Some decisions have required employers to pel"mit employees to use special leave or earned sick leave credits for the purpose of religious observance, pur$uant to the te:rms of the applicable collective agl.'sements. (Kimmel/Leaf; Rezpa, above), (29] Other decisions have denied employees paid leave for religious observance where options were available to permit time off without loss of pay. In Richmond, for instance, the court found that the employer met the duty to accommodate employees wishing to take time off for religious holidays through a policy allowing for the use of annual or compensatory leaves, shift exchanges, variable hours of work or individual arrangements for make-up time, on a case-by-case basis. In the Tratynek, Ci ty of Toronto and Turning Point decisions, scheduling changes were considered to fulfill an employerls obligations to accommodate employees requiring time off for religious observances. 13 (33] It is important to note that the diacriminatory effect arises from the work schedule. For non-Western Christians, the discrimination consists of the requirement to work on holy days! a requirement not imposed on Western Christians, at least with respect to Christmas and Good Friday. Following on this, the duty to accommodate discussed in Chambly and other decisions concerns the search for a solution that permits time off for religious observances! without adverse employment consequences. [34J In this contextj a number of courto and tribunals have concluded that an employer that provides an employee with options for achieving the time off through scheduling changes (that do hot result in a loss of pay) can satisfy its duty to accommodate religious differences. To put it simply, where the uproblem" is the need for time; the solution is the enabling of time. The following observations made by a unanimous panel of the Ontario Court of Appeal (through the judgment of the Court written by Moldaver J.A.) in Ontario (Ministry of Community and Social Services) v. o.P.B.B.U., supra, are also instructive regarding the use of scheduling changes as a form of accommodation: [37] A review of the relevant authorities leads me to conclude that employers can satisfy their duty to accommodate the religious requirements of enWloyees by providing appropriate scheduling changes, \'lithout fil'st having to show that a leave of absence with pay would result in undue economic or other hardship. Indeed! in some instancesj scheduling changes may provide the fairest and most reasonable form of accommodation. Central okanagan School District No. 23 v. Renaud 1992 CanLII 81 (S.c.C.), (1992), 95 D.L.R. (4th) 577 (S.c.C.) is a case on point. [4.6J Just as scheduling changes can provide reasonable accommodation in some casesj in others they will not. If the proposed scheduling change occasions significant hardship or inconvenience to the employee, other forms of accommodation must be explored. In some instancesj scheduling changes may not be available at all. ChamblYI Commiss.ion scolaire regionale v. Bergevin 1994 Can LII 102 (S.C.C.), (1994), 115 D.L.R. (4th) 609 ~- 14 (S.c.c,) is a case on point. Reference may also usefully be made to the following observations made by Arbitrator Tacon in Toronto (City) and C.U.P.E., Loc. 79 (Silver-Winick), supra, at pages 372-3: Recognition thl;\t our multi-faith society requires accommodation of a variety of religious holidays has been expressed in numerous decisions in the arbitral forum and the courts. Generally, the question of accommodation has arisen in the context of adverse effect discrimination, That is, the application of a rule or policYI neutral on its face! has a discriminatory effect when applied, for example, to a particular religious minority. In such circumotances, the employer is required to accommodate the individual affected to the point of undue hardship. These themes have been woven through the jurisprudence and need not be recounted at length herein. More fulsome expositions are found in decisions such as: Renaud, supra; Chambly, supra; Humber College, supra; and the Kimmel/Leaf a\...ard, supra. More problematic is the practical expression of the principle of accommodation. This search involves consideration of the terms of the collective agreement in unionized settings.... Collective agreement provisions are germane to the issue of accommodation for a number of reasons. They may provide some indication of what constitutes reasonable accommodation in the context of theemployer's operations. They may also preclude an employer froln implementing some forms of accommodation without the consent of the union. However, as indicated by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, supra I the union may bGcome a party to discrimination by impeding the reasonable efforts of an employer to accommodate an employee (or by participating in the formulation of a work rule that has a discriminatory effect on an employee). The parties to a 15 collective agreement cannot legally contr~ct out of the Code by providing for lesser accommodation than that required by the Code. However, a collective agreement can legally provide for greater or more generous accommodation than the Code requires. In the present case, Article 12.2 of the Agreement clearly contemplates that II religious lea,ve 11 may be granted tlwithout loss of payll in some circumstances. Although as contended by Union counsel it is grammatically possible to construe the phrase "in extenuating personal circumstancesll as modifying only IIspecial leavetl, and not modifying II [1] eave of absence for personal reasons" and IIreligious leave", that interpretation has not found favour with any of the numerous arbitrators who have been called upon to hear and decide cases regarding that provision. As indicated by Arbitrator Simmons in Sheridan College and Ontario Public Service Employees' Union (Grievance of N), supra, at page 12, what is now Article 12.2 (originally Article 10.2, in which the two paragraphs of that provision were designated as Articles 10.02 (a) and (b), respecti vely) II fh~st appeared in the collective agreement that became effective on September 1, 198111. In Confederation College and Ontario Public service Employees! Union (Grievance of Thelma Smith), supra., which was one of the earliest cases regarding that provision! Arbitrator O'Shea found (at page 14 of the majority award dated August 11, 19B2) that the phrase ltin extenuating personal circumstanceslJ !Imodifies all three types of leave referred to in Article 10.02 {b}, i.e. it 16 modifies leave of absence for personal reasons, a religious leave of absence and a special leave of absence II , Although religious leave cases have been silent on the matter! that construction of the provision has been applied in many other cases over the course of the ensuing decades: see! for example, Loyalist College and Ontario P~lblic service Employees' Union (Grievance of Sandra Novroski), supra; Georgian College and Ontario Public Service Employees' Union (Grievance of J. Peacock), supra; Fanshawe College and Onta~io Public Service Emp.1oyees 1 Union (Grievance of Louise Watt), supra; Centennial College and Ontario Public Service Employees! Union (Grievance of Colleen Purchase), supra; Centennial College and Ontario Public Service Employees' Union (Grievance of Yvonne Glenville), supra; Sheridan College and ontal"io Public service Employees' Union (Grievance of Mary Cator), supra; and Sheridan College and Ontario Public Service Employees! Union (Grievance of N) f supra. In Centennial College and Ontario Public Service Employees I Union (Grievcl1Jces of Sandra McEacl1ran), supra, Arbitrator MacDowell masterfully reviewed the arbitral jurisprudence under Article 12.2, writing in part as follows at page 23 of the majority award: Religious leave aside, the language of the agreement suggests that leave with pay will be justified only for something unusual, or special! or unforeseen or (to use the words of the clause itself) Ilin extenua ting circumstances". The use of the word "extenuating" seems to be an attempt to capture something that is extraordinary, or unforeseeable, or beyond the individual's personal control. Although the opening words of that passage (u [r]eligious leave 17 asideU) may implicitly suggest that the phrase Uextenuating personal circumstances" might have a somewhat different meaning in the context of "religious leavell, neither those words nor anything else in that award or in any of the other aforementioned awards regarding Article 12.2 suggest that the phrase does not modify "religious leave II . Moreovel', as a matter of basic grammatical construction, if that phrase modifies 11 (1) eave of absence for personal reasons 11 ! as it has consistently been found to do in the aforementioned arbitral jurisprudence, then it must also modify "religious leave" as it is grammatically impossible for that phrase to modify the first and third types of leave listed in the provision, but not the second type of leave ",hich is listed between those two. Although the Centm]nial College case involved a request for paid leave to attend a doctor's appointment rather than a request for paid religious leave, some other passages from that award (at pages 20, 24! and 25) are also worthy of repetition in the present context, as they are instructive with respect to the scope of the College's discretion under Article 12.2: We might begin by observing that Article 12.2 is one of a number of provisions that deal with time off work, leaves of absence, or indemnification for lost work time. Some of those clauses are unqualified and provide for full indemnification. Others are conditional or do not fully reimburse the employee for the lost income. And some clauses - like Article 12.2 - involve both preconditions and the exercise of employer discretion. The precise formula varieo from situation to situation (union leave, educational leave, parental/pregnancy leave! STD, LTD, etc.). 18 Article 12.2 then goes on to say! that if an employee has done what is contemplated in the first t\'JO sentences of the clause, and if the situation comes within the parameters of the third sentence! then the College IImay' ,., in its discretionll grant the leave without 1086 of pay. The permissive IImay" is follotoJed by the confirmatory lIin its dil;1cretipnlJ, and in our view, the repetition emphas.izes the discretionary nature of the exercise. Then the clause stipulates that the employeels request shall not be "unreasonably denied" . Accordingly, apart altogether from what the employee must do (1. e. a/he must try to minimize the operational consequences! and s/he must give reasonable notice) there is an acknowledged exercise of discretion on the College1s part, together with a duty to act "reasonablyn. That is why we have described the process as a "qualified exercise of disdretionll, Because the way in which the clause is framed, means that even if the employee can point to Iiextenuating personal circumstancesH, the employer still has a discretion to grant or refuse the leave, IIwith pay" provided that it acts reasonably..., Of all the numerous cases regarding Article 12.2 referred to by counsel during the course of their submissions, the one that is most directly pertinent to the instant case is the previous case between these parties with respect to religious leave, Seneca College and OPSEU, Local 561 (Grievances Concerning Religious Leave), supra, in which the parties asked the board of arbitration to IIclarify the appropriate criteria which should govern the employer's discretion in granting religious leave" (see page 2 of the award). The unanimous award written by Arbitrator Whitaker includes the following particularly instructive passages regarding those criteria (at pages 7-10) : 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 19 exercising its discretion to grant religious leave. Those factors may be summarised as follows: 1. an Hover-riding" responsibility to students means that leave will be scheduled "where possiblel1 to enSUl."e a minimum of disruption to student serviceSi 2. reasonable notice of the request shall be given to supervisorsi 3. leave is to be granted at the discretion of the 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 Central Alberta Dairy Pool [(1990)! 72 D.L.R. (4th) 417]. In that case, while making it clear that the list provided was not exhaustive, the Court mentioned the follows factors: financial cost, disruption of a collective agreement ( problems of morale of other employees, interchangeability of work force and facilities! size of the employer's operation and safet.y. 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 student.s. Recognizing this reality, the parties made submissions at the hearing which addressed some of the pr~tctical concerns which arise in this particular work environment. With these in mindl we are of the view that religious leave requests under article 12.2 should be granted under this collective agreement wherever reasonably possible having regard to the following factors: 1. the number of employees who request the leave; 2. the number of days of leave sought; 3. duties of the employees seeking leave; 4. pot.ential disruptions to the work flow; 20 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 r~tes; 8. is the request bona fide; 9. the size of the 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 of the need fbr the leave. Factor fl71l recognizes that the festivities which surround the actual performance of religious rites should be seen as a legitimate component of religious 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. The case dealt with the same collective agreement provisions where leave had been sought by a member of the Wiccan faith. The board noted that leave should be granted for the celebration component of a religious holiday (as distinct from the mere performance of religious rites) where the employeels "personal benefit" from the holiday would be otherwise ~significantly reduced>>. We adopt this reasoning. Factor >>1011 does not mean the employees such as the grievor are responsible for finding other employees to do their job while on leave. It does mean that an employee must respond reasonably and in good faith when asked to assist the en~loyer 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 assignmentl as long as such alterations in the work pattern are consistent with the provisions of the collective agreement. Concerning the notice requirement in factor 1111>> - the existing policy r.equires thirty days. At the hearing, the Union did not suggest that this was a.n unreasonable requirement and we agree. It can be assumed that adherents of particular 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 of the day for which 21 leave is requested. The qualifying comments in Alberta Dairy Pool, 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. !t is common ground between the parties that the eleven factors listed in that award may appropriately be taken into account by the College in determining whether to grant paid religious leave under Article 12.2 Most of them are lioted in paragraph 3 of the Policyls Administrative Guidelines, which io one of the paragraphs with which the Union has no issue and which quite properly indicates that the factors listed in it are Jlgeneral guidelines II , and that "other factors may be conoidered on a case-by Case basis". With the principles set forth above in mind, "Ie turn our attention to those portions of the Policy with which the Union takes iSBue. As indicated above, the Unionts key concern with the Policy as currently written is that it makes paid leave for religious observance the absolutely last resort option that will be considered by the college. We find that to be a legitimate concern. Although Article 12.2 expressly provides for "religious leave .., in extenuating personal circumstances without loss of payl1 to be granted at the discretion of the College, and prohibits such requests from being unreasonably denied! that possibility is not included in the options listed in paragraph 4, which does list !ltake a leave of absence without pay" as an option. But for the wording of paragraph 5, that omission might be defensible in 22 light of the fact that paragraph 4 concludes with the following 8entence~ llThe above options are general guidelines and other options may be considered on a case~by-case basis. II However, it is not defensible in light of the first sentence of paragraph 5 of the Policy, the material portion of which reads: IIWhere all options have been considered and reviewed by the College and the employee, and there is no reasonable alternative identified as operatibnally feasible, the College may approve a leave of absence of '.. paid scheduled days for religious obser.vancelt. That sentence clearly makes approval of paid religious leave contingent upon exhaustion of all of the options listed in paragraph 4! including taking a leave of absence without pay, and constitutes an undue fettering of the College 1 s qual ified discret ion under Article 12.2. (since the College is currently in the process of revising paragraph 5 of the POlicy's Administrative Guidelines to delete the reference to IItwo" days, it is unnecessary for the Board to determine whether the inclusion of that two-dQY "cap" also constitutes an undue fettering of the College's discretion under that Article, and it would be inappropriate for the Board to do so in the absence of more extensive submissions on that matter.) The absence of any reference to paid religious leave as a possible option is not the only problematical aspect of paragraph 4 of the Policy. The first option listed therein is 'Jmake-up the time at a later date when the employee would not normally be scheduled to work and be paid at the employee's 23 regular rate for the substituted shift/hoursu. If the employee'o "regular ratell is what the Agreement would require the College to pay the employee for making up the lost time on that later date, that option is unaoaailable. Indeed, as indicated in the foregoing jurisprudence, in some instances scheduling changes may provide the fairest and moot reasonable form of accommodation. However! if paying the employee'S regular rate for that work would be violative of the Agreement (because, for example, overtime or shift premium would normally attach to those hours in the absence of a waiver), the Union is entitled to be involved in the accommodation discussions in order to exercise its right and duty, as exclusive bargaining agent, to oversee the application and enforcement of the Agreement, and to be afforded an opportunity to fulfill the duty of accommodation jointly imposed upon it! the College, and the employee, by the last sentence in Article 2.3. The same is true of the second option! l,olhich contemplates that lIan employee could be SCheduled to work on a Saturday or Sunday where these are not days when the employee i8 normally scheduled to work and the employee would be paid the regular rate for hours workedll. The third option may also require Union involvement, if the College seeks to have any premium payment or other applicable provision of the Agreement waived in relation to the switching of shifts or hours of work with another employee. Union involvement may also be required with respect to the fourth option, if the College seeks to have any premium 24 payment or other applicable provision of the Agreement waived in relation to the modification or adjugtm~nt of the employee's shift schedule. MoreoVer, the "compressed work weekll example mentioned by the Policy in relation to that option may engage Article 6.1.4 of the Agreement! which provides for the implementation of flexible hours of work and scheduling arrangements llsuch as compressed work weeksll that provide no Ifmonetary advantage or disadvantage to the College or to affected employees relative to employees working regular hours II , That Article expressly provides that such ar~-angementB can only be implemented II [w] here a College and the Local Union agree and where affected employees approven. However, as acknowledged by Union counsel in her submissions to the Board, the Union may in some circumstances be required to agree to waive scheduling or other requirements of the Agreement so as not to impede the reasonable efforts of the College to accommodate an employee. The fifth option listed in paragraph 4 of the Policy is Huse outstanding vacation day(s) or lieu time (where accrued) to be paid for the day (g) off for religious observancell. Although it is open to an employee to voluntarily use vacation or lieu time for religious observance purposes, the College cannot require an employee to do so because I as noted by Arbitrator Tacon in Torm1to (ei ty) and e.U.p.E., Lac. 79 (Silver-Winick), suprd, at page 379, lI[t]he case law has recognized that vacation is an earned benefit and the employee's entitlement to vacation cannot be compromised 25 through diversion of those days to religious needs II , Moreover, in Ontario Public Se.rvice Employees and Fansh.;lwe College (Grievance of Sid Skinner), supra! at pages 13 and 141 Arbitrator MacDowell found (in a unanimous a~ard) that it was not open to the college to demand that an employee use up vacation credits prior to the exercise of any discretion under Article 12,2. Thus! although the use of vacation or lieu time may properly remain in the policy as an option available to employees on a voluntary basis, it is not an option which must be exhausted before consideration is given to the availability of paid religious leave under Article 12.2. The inclusion of thE! final option - "take a leave of absence without pay" ~ is problematic because! when read in the context of the other five options (which all provide an opportunity for the employee to avoid lost earnings), it is clearly an option involving the adverse employment consequence of suffering a loss of earnings as a result of time taken off for religious observance, a result which is proscribed by the Code and the applicable jurisprudence unless it is the only option that can be implemented without undue hardship to the employer. For the reasons set forth above, we have concluded that to avoid violations of Article 2.3, Article 12.2, and the union1s representational rights as exclusive bargaining agent for the employees covered by the Agreement, the Policy (at least insofar as it applies to those employees) must be amended: 26 (1) to provide for Union involvement whenever the possibility of waiving a premium or other requirement of the Agreement is being considered in relation to a possible form of accommodation; (2) to ado as an option paid religious leave, which \",ill be available when all of the requirements of Article 12.2 (as described above) have been satisfied; and (3) to make it clear that taking an unpaid leave of absence without the opportunity to make up the lost earnings is the option of last resort, which is only to be used if none of the other options can be made available without imposing undue hardship on the College. Although the precise meaning of nextenuating personal circumstances" in the context of requests for religious leave under Article 12.2 will have to be determined for the most part on a case by case basis, we find it appropriate to indicate for the guidance of the parties that we are of the vie"" that it includes considerations such as the employee I B work schedule and whether it can be varied so as to permit the employee to make up earnings which would otherwise be lost due to time a'l,ay from work for religious observance. If, for example, as in the circumstances of Commission scolaire regionale de Chambly v. Bergevin, supra, the nature of the work performed by the employee does not permit such variances and the employee is denied religious leave without loss of pay, the college may well be found to have violated Article 12.2 of the Agreement by unreasonably denying that leave. 27 We shall remain seised for the purpose of dealing with any issues which may arise regarding the implementation of this ao,.lard. DATED at Burli119ton, ontario, this 10th day of February, 2011. "~;;?:;~J;~) . ~~l~~~ Robert D. }1oo,.le Chair I concur. "P~mela Munt-Madill" Union Nominee I concu1.-. II Cq,r], a 7.,abek II College Nominee 28 Seneca College - Policy Page 1 of 2 Seneca Policy Religious Observance POlleY STATEMENT II is the Policy 01 SeneclI Colle<Jo thai aU emplOYlfes shall work Inan Inclusive leaching, lo~rning and working envlronmenlthat respects and values the divorsity of faUh of our employees, Recognizing the College's .commllmentlo its students, it is understoM thot all requestsfor leave of absence required lor religious observance will be considered end scheduled to minlmlzedisrupUon 10 the ecademlc programs. services end operationel requifementsollhe College. The CoUegewlll accommodate, wherever possible, absences lor the purpose of religious ob!Wrvanca. The Collego will Implement such measures as, but nollimlted to. reachedullng work hours, timelables, shins, work schedules or assignments In order 10 permit the employee to lully particlpato In lhelr religious observanC<:l witMutlo&S of pay, This polley roeognfZDs that absences for religIous observance are included in the Collectlva Agroements, Tefl1HI and Conditione of Employment for AdIl'linl$lJ"atlve SlaHond tho Ontario Human Rights Code, as II shared responsibitity. As BUch. tile College recognizes lhat the partle8 are obligaled to consider all options. whIch mayor may nol ba lnoluded in the GolJacllve AgroE;llYlenls, to acCommodate an employee'e leave for religious observances. Requesls for absences for Ihepurpose of religious Observances, wilh orwllhout PllY, will be approved for Ihose days l(/onliOed by Ihe Ont~rio Pl.ll)lic SelVlCt'!'s lIst of Religious Holy Days andlor In circumstances where the employaedernons[mles tho slm:erity of the pracUce or belief. having a noxus 10 religion, honestly held, and objeclivety or subjectively obligatory or customary. ADMINISTRATIVE GUIDELINES 1. Where an employee requIres Ume off from work for religious observance, requests shall be submitted in wrltlng, a minimum of 60 days fn advance of the date of lho reUaiOUB observsnce, to their Immediate supervMr, The request ml.lSI state the name oHM observance, date being requested and the religIous affiHallon. 2. Upon receipt 01 any request for a leave. of absence fot religIous observance, and prior 10 approval, the supeJVIsor is raquireclto discuss tho requeM with Human Resourcos Services, Employee and Labour Relations. to enwmfalrness and coMislenc.y in the applkaUon of Co1tr:ge policy. 3, For Ihe purpose of approving leaves of absence for religious obselVances,lhe College may consider sante or all of the following factors: o day and dale requested o the number of employees who raquesl the leave o Ule number of days ofleilve sought o duUesof the emplovees Seekinglhe laave. o pl)lenlla! dlsnJptlons to the academic programs, services and operallonal requiromenls o pOlcmtiat risks.tQ olhera o the granting of the leave should not disadvantage Of advanlage the requesting emplovee!l over others o the reasonAblo scope of celebration over and above the perlormsnoo of religious rites (I,e, they must be a legitimate component of religiOUS celebration) o the request Is bona fidct o tho size anile functional admlnlstrativo unit (School or Depmtment) o lhe empJoyee must resPQnd re!\s.onablv llnd in good I~ith in Implementing the appropriate accommode tion The IIbi)ve fllctors are gctncral gu1delines and olh.er faciors may beconstderecl on B case-by.casa basis, 4. Requests for leava of absenCe forreligloU$ observanCe will not bo unreason~bly denied, An http://senccae,on,cnlpolici e s/ro .htm I 10/01/2011 Senecn College ~ Policy Page 2 01'2 employee wlll be ~rovjdeo with the following oplioos io ordetlo ensure that Iho employee has Iho OPPOr1unlty to par1icipate ~l rellglous observances and to av.old loss of pay: o make-up the time at a taW oale when the employee would riot normaltybe scheduled to \'Iorx und be paid althe emploYl1o's rellular rale for the subsUluled shlfllhours o subject 10 CollecHve Agreemenls and operational requirements, an employee could be scheouled 10 worx 00 a Saturday or Sunday where Ihose are nol days when the employee Is normally scheduled 10 work and tho employee would be paid Ihe regular rate for hou~ worked o whera operationally feasible, swilch shlflslhours of work with another employee In the VlOrk unit o where possible, lhe employee's shift schedule could be rnOdifietl {lOo/or adjusted (e.g. compressed work week) o use outstanding vacaUon day{s) or lieu lime (Where eccrued) 10 be paId for the day(s) orf for religious observanC(l o take a leeve of abslm~ Wil/loul pay The above oplions ara genersl guidelint;ls eno olher options may be considered on (l C<lse-by-case basis. 5. Where all opllons have been Gonsidered ano reviewed by the Collefje and the employee, Bnd there is no reasonable alternative Identifredas operallonally feaSible, the College may opprove a leave of absence of up to lwo paid scheduleo days fcrreltglousobservance to .fult-lime anti partlaj-Ioad BClIdemlc, and full-lime :iuPPOf18laft and admlnlslfative employees On an annual basis, Approvals for such leaves wlU lake inlO accounllha College's cotrjrnitmenl to !tssludants and where thero fs a minimum of disruption 10 the edUCilliQnar programs, services andlor operational requlremllnls of Ihe Collllge. For the purposes ollhl$ policy,lhe annual period Is from Seplember 1 to August 31. 6. Contract adll1lnlstraUve stefl, part.-time Bnd sessional aca.damic staff. and par1l1me. contract. Appendi): D or G support stefl employees are noleligible for paid loaves of absence. However, In OCc.:lrdllnGe wilh lhlt! Policy, requests for lime-off for rellgious obsllwance will be conslderedalld. where there Is a mInimum of disruption 10 Ihe educational programs, services end/or operational requirements of lhe College, Iho College will allempt 10 reschedule the employee's hou,s of WQrk, ossignments,atc, so thatlhe omployee wlllllvold Ihe loss .of pay. Where lhls Is not feasible. tho employee wlU be granted leave wllhoul pay for the purpese of religious observance. 7. There shall be no subsliluUon 01 a work day and/or shift if the dalo of lf16 religious observanoo requested falls on a weekend or a day where Ihe employee is nQt scheduled 10 work, 8. AllleavQs of obsence,lnctudlng those approved for religIous obs&ri'ance. are to be recQlVei.l 011 [he Allondance TrackIng System. liS are all ather leavee, such as yaCllllon, professional development, jury d!Jty. alc. ThO Office of the Vice,Pre sid ent of HUml'll1 Resources is rO$ponsible for the admlnislrallon and cammUl1icaUon of this PQlicy. Referllt1CeS Ontario Human Rights Code Canadian Charter of Rights and Freedoms SUppor1 Staff.Cotlec1ive Agr(lement Academic En1ployees Corrective AgreeOlenl Terms & CondlUons ef Employment for Administrative Slaff ,....v--.O.~_~~~K__"~...............~_...,.___,____~_,..",.....................---._____~~ Mallllilillcd by; Human Resources wllh Stlpport from In Services http://scnecac.on.calpolides/fo . html 10/0112011