HomeMy WebLinkAbout1979-0240.Singh.80-11-06‘,
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Between:
Before:
For the Grievor:
For the Employer:
Hearing:
IN THE MATTER OF AN ARB!TRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GR!E~VANCE SETTLEMENT BCARD
Mr.,Gurnam'Singh
.,Atid
The Crown in Right cf Ontario
Ministry of Correctionai Services
Professor M. Eberts Vice-Chairman
Mr. A. Fortier Member
Mr. R. 'Cochrane : Member
Mr. 'G. Richards, Grievance Officer
Ontario Public Service Employees Union
Mr. J. Benedict, Manager
Compensation, & Staff Relations
Human Resources Management
Ministry of Correctional Servic2.s
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November 14th; 1979
Suite ZlOD, 180 Dundas St. West
Toronto, Ontario MSG 128
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In Thorn and Ministry of Correctional Services 82/78,
the Grievance Settlement Board concluded that the policy of
the Ministry of Correctional Services concerning the wearing
of facial hair by correctional officers was a reasonable one.
It ruled that one such officer who was dismissed by the '
Minstry for failure to comply with the policy had been justly
discharged. The officer, Mr. Thorn, did not advance any
religious reason for refusing to shave off his beard as
required by the policy. It seems that his refusal was a
"point of principle" because adequate training had not been
given to make him a competent rescuer in a smoke-filled area,
and the need for a clean shaven face was justified by the
need of officers to wear face masks in rescue situations.
The complaint of Mr. Singh is, essentially, a repris.e
on the Thorn decision. At pages 6 and 7 of the Board's reasons
in Thorn, we see the testimony of Mr. B. Doyle, Superintendent
of the Ontario Correctional Institute at Guelph that only
three of his ninety correctional officers refused to comply
with the policy on facial hair when it first was introduced.
The person whose refusal was based on religious grounds
(see p.7) was Mr. Singh, the grievor in this case. The
policy on facial hair is as follows:
This memorandum will outline th'e Minstry's
policies concerning the growing and wearing of
facial hair by correctional officer staff and
supersedes all other previous directives and
memoranda on this subject, effective March lst,
1978.
The Manual of Standards and Procedures, Section
d-6, Page 1, which refers to the wearing of
beards, moustaches and sidesburns, will be re-
vised to road as follows:-
“Correctional officer staff members may
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should notbe of such length as to
provide a prisoner with a hand hold in
the event of a scuffle.or impede the
effective fitting of an air mask or a
tear gas mask;
Beards'may also be grown, subject to the
same restrictions and conditions.
To prevent the misinterpretation that
he is on duty unshaven, the uniform
member who intends to grow a beard must
inform his Superintendent of his intention
to do so, in writing and in sufficient
time for senior supervisors to be.advised.
Superintendents will ensure that all
staff in their institution are'made aware
of the Ministry's policies with respect
to this matter by the distribution and
posting of a memorandum and by incorporting
these policies in their standing orders.
In addition, Superintendents will ensure
that all prospective employees for correct-
iona'l officer positions within the Ministry
are advised that these requirements are
conditions of employment.
During serious incidents such as riots or
fires correctional officer staff, in order
to protect themselves, their.col1eague.s or
those in their care, may be required to
wear a tear gas mask or an air mask. There-
fore, it is absolutely essential that
nothing interfere with the proper fitting.
of these face masks.
The manufacturer o,f the air mask, which
the Ministry has adopted, has advised us
that facial hair can prevent the face ma~sk
from sealing properly thereby causing
leakage and resulting in danger to the
wearer,
In view of this, correctional officer
staff will ensure that, while on duty,
their faces are shaven in such a fashion
that their facial hiir does not prevent
the face piece on an air mask and tear
gas mask from being properly sealed around
their face and jaw line. To accomplish
this, staff must cut or trim their hair to
a point at least l/4" back from the edge
of the face mask, where it is in contact
with the face."
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All correctional staff while on duty will be
required to conform to Section A-6, Page 1,
Manual of Standards and Procedures and to the
Superintendents requirements concerning hair-
styles, beards, moustaches and sideburns.
Failure to comply with these requirements,
may result in disciplinary action.
Glenn H. 2artet
Mr. Singh was a correctional .officer before this policy
came into effect, having been hired at Guelph Correctional Centre
in 1973. There was no indication at the hearing of this matter
that he was not a very good officer. There was no complaint at
all about his work. Mr. Singh's refusal to comply with the
policy was based on his membership in the Sikh religion, which
has as one of its tenets the obligation for a man not to cu t
his hair or beard.
Originally, Mr. Singh agreed to comply with the policy.
It appears, however, that his agreement stemmed from his inter-
pretation that he could shave his beard to within certain limits
and achieve compliance. The Ministry took, and continues to
take, the position that Mr. Singhs proposed method of shaving
would not comply with the policy. The Board accepts that position.
The Regional Personnel Administrator offered Mr. Singh
three alternative job openings, by letter dated April 5, 1978. 4
They were Agricultural Worker 1, Laundry Worker 2, and Helper
Food Services, all at rates of pay lower than his Correctional
Officer level, and all necessitating a move for which no moving
expenses would be paid. Finally, Mr. Singh accepted under
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objection the ;iob of Clerk 2 supply at Guel.ph Correctional
Centre. .
In a letter to Mr. Singh dated April
Regional Personnel Administrator advised hi
As this move constitutes a
demotion, on .May lst, Your ..~
24, 1978, the
m:
salary will be changed
to $5.73 per hour, the
maximum rate 02 Clerk 2
SUPPlY.
On March 14, 1978,.two weeks after the policy became
: effective, Mr. Singh was relieved of duty and placed on leave
of absence covered by.attendance credits. This ~situation
continued until March 30, 1978, when Mr. Singh returned to
work, assigned Correctional Officer duties at the Guelph
Correctional Centre related to maintenance of the grounds.
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The pay for this position,was the same as the pay for his pre-
vious Correctional ~Officer .n position, '$7.25 per hour.
His complaint here'is that the Ministry should have
taken one of two alternative courses of action instea'd of the
one i.t actually took as a response to his inability to comply
wi.th the policy. The Ministry gave him substitute, less \
remunerative, employment. The grievor states that the Ministry
should have sought alternative employment for him more consistent
with his abilities, record as a correctional officer, and train-
ing. Mr. Singh testified that he has obtained a Canadian
Bachelor's degree in Sociology from the University of Guelph in
~1977 and pursued a certificate course incriminology (McMaster,
1979) since taking employme'nt with the Ministry, and his
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representative argued that the Ministry should have found
him alternative employment more in keep ing with his skills.
It was also argued on behalf of Mr. S
could have been made to accommodate h
as a correctional officer, by finding
ngh that more efforts
s continued employment
him a correctional
officer's position within the Institution which did not
require the wearing of a face mask; It was also argued that
even without efforts to find a special position within the
Institution, the infrequency of occasions on which the
breathing apparatus would have to be worn by any particular
officer did not bulk so large in the Ministry's operations
that inab'ility to wear the mask should have amounted to grounds
for "demotion".
Preli,minary Objection to Jurisdiction
A preliminary objection was taken by counsel for the
Ministry to the jurisdiction of this Board. We were asked
to decline to hear the grievance on the ground
matter was more properly the subject of complai
Ontario Human Rights Code, R.S.O. 1970, c. 318,
that this
nt under rhe -
as amended.
The reference was to the provisions of section 4
the Code, which provides,
4(l) NO person shall, '
l)(b) of
(b) dismiss or refuse to employ or
to continue to employ any person;
because of race, creed, colour, aqe, sex,
marital status, nationality, ancestry, or
place of origin of such person or employee.
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The Human Rights Code, section 13, provides that com-
plaints of violations.may be made to the Human Rights Com-
omission, which.j,s then charged ,by section 14 with investiga-
ting and attempting a settlement of the matte'r complaine,d of.
Failing settlement, the'ninister, of Labour has the discr etion
under section 14a as to whether a Board of Inquiry shoul d. be
appointed to adjudicate upon the complaint.
The Code also st
parties to a proceeding
Human-Rights Commission
Counsel for the Ministry did not argue that we should
decline jurisd iction in this case because of a compla int of
discrimination had: already been lodged with the Human Rights
pulates in section 14b (1) that the
before~a Board of Inquiry include the
"which shall have the carriage of
the complaint," the complainant, and the person whose
is complained of.
conduct
Commission. He based his submission on the abstract existence
of a remedy in the &.k, As this is an important concern -
which will arise with more frequency as minority-group members-
become more aware of their rights - we consider it useful to
offer a few observat,ions on the.issue he,re.
We retired to consider the submission of Counsel and
ruled that this Board heas~the jurisdiction, and indeed the
duty; to proceed with the grievance in the circumstances.
Section 18(l) of The Crown Employees'. Collective Bargaining.
ACt, 1972, as enacted by S.O. 1974;~.135, 5.9, provides as
follows:
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18. (1) Every collective agreement shall
be deemed to provide that in the event the
parties are unable to effect a settlement
of any differences between them arising from
the interpretation, application, administratioh
or alleged.contravention. of the agreement,
includiny any question as to whether a matter
is arbi ttable, such matter may be referred
for arbitration to the Grievance Settlement
Board and the Board after giving full
opportunity to the parties to present their
evidence and to make their submissions, shall
decide the matter and its decision is final
and binding upon the parties end the employees
covered by the agreement.
It can be seen that the Board "shall decide the matter"
submitted for arbitration after full. opportunity has.been
given to make submissions. The grievor might well have just
cause for complaint if this Board were to advise him to
proceed by way of a complaint to the Commission.
There are a number of issues at stake in the Ministry's
submission. The Crown Employees Grievance Settlement Board,
and the process leading up to its hearing of grievances, are
part of a mechanism established for the orderly settlement
and adjudication of work-related grievances in the public
service. It is a specialist tribunal charged with the
development of a coherent body of principles relating to
labour relations in the part of the public sector under its
aegis. In hearing cases, it is to be gxpected that from time'
to time the Board will be called upon to interpret the law,
including statute law, generally applicable in the Province.
Part of that law iS The Ontario Human Rights Code. Needless
to say, if the Board were to interpret the Code in a fashion
deemed incorrect by a reviewing Court, its interpretation I
would have to give way to the Court's: !CcLeod v. Egan I:9751
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This is not. to say, however, that the Board must stay
its hand each time a complaint may involve discrimination
or allegations of discrimination. To do so would be to 1
carve.out a whole are-a of arbitral jursiprudenceand activity
from the matters assigned to the Board. The decision of the
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Ontario Court of Appeal in Bhadauria V. SWICX~ college (1980)
270. R. (2d) 142 affirmed in Ontario the existence of a tort
of discrimination actionable in the ordinary Courts'in spite
of'the existence of the Human Rights Commission. This case indi-
cates that ju,dicial policy in this area may'well be in favour of
more - ratherthan fewer - forums in which these questions
can be adjudicated. It may also be said that in the long run
Ontario government employees ,will benefit from having "their.
tribunal", the Grievance Settlement Board, develop an expertise
in then delicate balancing judgments so often required when
discriminption is alleged. .,
Had the grievor already submitted a complaint to the
I ~Human Rights Commission, different considerations might arise.
. .
,The r-elated spectres of the "double jeopardy" of the employer,
and "res judicata" arising in respect of the facts and issues
before the Grievance Settlement Board must surely cause each
of the boards to review ~carefully its position.~ It is to be
observed that the issues before the Human Rights Board of
Inquiry may well not be identical to those before the labour
tribunal: the Commission is the party with carriage of the
action, rather than the grievor, and the Board of Inquiry may
under section 14b (l)(e) of the Code join "any other person"
as a party to the hearing. The scope for a wide airing of
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structure of the Board of Inquiry process. The Board of
Inquiry also has a wider remedial jurisddction than the
Grievance Settlement Board. The Board of Inquiry may, '
according to section-14c:(b) of the Code:
,
order any party who has contravened this
Act to do any Act or thing that, in the
opinion of the Board, constitutes full
compliance with such provision and to
rectify any injury caused to any person
or to make compensation therefor.
The Grievance Settlement Board's power is described
in section 18(l) : ( as enacted by S.O. 1974, c. 135, s.9 )
Where the Grievance Settlement Board
determines that a disciplinary penalty
or dismissal of an employee is excessive,
it may substitute such other penalty for
the discipline 01 dismissal as it considers
just and reasonable in all circumstances.
It may be that where a complaint to the Human Rights
Commission has reached the stage where the Grievance Settle-
ment Board could be sure that a Board of Inquiry would be
hearing the complaint, the Grievance Settlement Board would
consider adjourning its proceedings to await the outcome of
the Board of Inquiry. At that stage, it would be possible
to ascertain whether the issues before the Board of Inquiry
are the same as, or include, the issues before the Grievance 4
Settlement Board. Because the Minister has a discretion as
to whether a Board of Inquiry will be appointed at all, an
adjournment of The Grievance Board proceedings at any time
prior to the appointment of a Board of Inquiry might very
well be premature and may cause a needless hiatus in the
The facial hair policy of the Ministry is certainly
not an attempt to'single out for unfavourable treatment of
is a neutral members of any particular religious group. It
policy, the reasons for which were appreciated
\ in m. T'here is no allegation here tha't the
by its actions, offended against any non-discr
by this Board
Ministry has,
imination clause
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resolution of a problem.
Accordingly, we think the Grievance Settlement Board
has the,jurisdiction and the duty to hear this.grievance.
The Religious ,Freedom Question
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in a Collective Agreement, as was the case in Arvin Automotive
Ltd. end United Steelworkers~ of America (unreported, Barton,
NOV. 28,~ 1978). The grievor's complaint is that the~uniform
application of a neutral_~policy produced, in effect, a "wrong,ful"
demotion. The wrongfulness comes from ttie Ministry having made
insufficient efforts to accommodate his religious beliefs, in
it-it accordance with the sp
policies.
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The facial hair
of Ontario's anti-discrimination
?Ol i CY is justified by reference tp~
the need for a person to be clean-shaven in order to create
an effective "seal" .around t.he air ,mask op the safety equip-
ment used in the event of fire or smoke problems in the facility.
Equipment, manufactured by Mine Safety Appliances Co., was pro-
duced at the hearing and the relevant face mask part was demon-
strated. A,moulded rubber part descends down each side of the
jaw and there is a "chin cup" at the bottom, necessitating very
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short side burns, and no beard. The presence of facial
hair would produce an imperfect seal and the effect of fan
imperfect seal is to permit carbon monoxide to enter the
' mask. Even though the quantity of carbon monoxide would
seem quite small, it w'as testified that it would be suf-
ficient to interfere with judgment of the wearer of the
mask. The Ministry is concerned for the welfare of the
incarcerated, who, in the event of a smoke or fire incident,
would be dependent for their rescue on the alert action of
~correctional officers.
Mr. Singh is a Sikh. He testified that Sikhs are for-
bidden by their religion to shave or to remove their turbans.
Ontario residents are by now familiar. with the traditional
headgear and beard of Sikh men. Mr. Singh's position is
somewhat unusual in that he does not wear the customary turban
and beard. His hair has been cut, he wears no turban, and his
beard is, as he says, "symbolic."
He testified that although his actions in shaving and
cutting his hair are contrary to the strict teachings of
Sikhism, he attends religious services in the temple regularly,
and could achieve full reinstatement in his community upon
letting his hair grow again. He told the Board that he had .
originally clipped his hair and beard because he was told in
his job interview that he could not be hired as a correctional
officer unless he did so.
This Board did not pursue this allegation extensi
as the question of his initia ! hiring was not before us
vely,
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seems, however, that Mr. Singh's rights at this point - if
he has any - should~not be-prejudiced because h,e has al,ready
sacrificed some of his religious scrup~les to get a job. He
should be entitled to the same prot~ect.ion as would accrue '
to a fully "orthodox" >ikh.,
The,question remains as to what that protection is.
Of.ficials of the Institution testifie~d as to the need for
the facial hair policy. There were two aspects to the Mini-
I stry's position. 'First1 y, it was pointed out that because of
the rotation system empl oyed for correctional officers, it
washard to ensure that one officer could be put in a job
where he would not be called upon to effect a rescue or use
protective-equ,ipment. The grievor pointed out.that correc-
tional officerspatrol in teams of two., so that one per team
could be sufficient "face-mask capability". The Ministry's
answer is that one never knows what might'happen to the one
man able to wear the mask, .s.o that a dual capability per
/ team is necessary.
suggest
vault,"
or rest
T
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he Ministry officials also testified as to the grievor's
on tha-t he might be placed on permanent duty at "the,
where there is no need to be able to wear a face mask
U
e inmates. The "vault" is the'control centre of the
Institute, located at the hub of the wings, where a correctional
officer regulates access to the premises ,-receives status reports
from places throughout the Institution
the safe where firearms are kept. The
dence that this officer never leaves h
and controls access to
grievor said in his evi-
s post and is not called
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on to wear the face mask. The Ministry argues that the
officer who;occupies this spot must be up-to-date on
developments in all parts of the Institution, and so must
go through the regular rotation on the floors - where an
ability to wear gas masks is necessary.
The Ministry has, in our vieri, sufficiently justi-
fied its policy on facial hair and protective equipment.
The value in having alert and trained officers, properly
equipped, to rescue inmates from danger cannot be gainsaid.
The fact that the Ministry did not demonstrate much actual
necessity at Guelph for rescues in smoke or fire situations
does not undermine the policy. The duty of the Ministry is
to be prepared for the eventuality of needing to use the .
protective equipment; it cannot "play the odds" with the
safety of people who are confined.
Mr. .Singh himself recognized the necessity for the
policy, given the vulnerability of the inmates. The question
remains whether the Ministry is obliged to make any accom-
modation to Mr. Singh, or whether it can insist that all the
accommodation be on his part.
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,The. Law
The law in this area is, at first blush, n.ot enti' rely
clear,,because of the varied contexts in which the question
of,conflicts between work~requirements and religious observa-
tion arises. There does, .however, seem to be a common theme
emerging in the cases. That theme'is "reasonableness" and
"accommodation."
Re Canada Valve Ltd. and International Molders, Allied
Workers' Union, Local 279 (1975) 9 L.A.C. (Zd) 414 (Shime)
was an employee grievance for unjust discipline. The empl
a member'of the Serbian Orthodox Church; was denied.leave
oyee,
for
his Christmas observances, took the day off anyway, and was
suspended without pay for three days. The discipline was
later modified to a warning letter. Article 9.02 of the
Collective Agreement provided:
The Company may grant leaves of absence
for legitimate personal reasons, other
than illness and/or non-compensable in-
jury for which leave of absence is
requested.
In holding that the discipline was inappropriate, the
Board ruled, at pages.415 and 416:
It is undoubtedly a valid consideration for
the company when granting leaves of absence
to consider its production requirements and
in the circumstances of this case;we are
satisfied that the company did consider those
require/merits. However, the discretion to grant
the leave of absence requires some objective
consideration of the interest of the employee
who makes such a request. The company's
obligation is to balance both the interest of
the employee and the interest of the company.
While the company is given a discretion, if
it were merely to take its ,production re-
quirements into -account when it received a
request from employees, it could in effect
nullify the effect of such a provision.
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In this case, we are satisfied that based
on an objective view of the circumstances
that the religious reasons for making the
request were valid and ought to have pre-
vailed in the circumstances. The company
was capable of having another cupola
operator to work overtime to replace the
griever so that the production wes not
hampered. Further, since the company has
only Jwo cupola operators capable of doing
the work, it is obvious that from time to
time one may be required to work overtime
and replace the other for legitimate
absences such as illness. The exingencies
of the situation are such that it is
apparent that the company will have to
accommodate absence so that it is not SO
unusual or anticipated that one cupola
operator may be required to replace
another. Further, even if one expects
the limitations placed on the company by
having only two cupbla operators, it is
difficult to accept the company's ex-
planation because it managed, to accommodate
the grievor in similar circumstances in
prior years.
In Arvin Automotive of Canada Limited and United Steel
workers of America (November 15, 1978. Barton), the grievor
was discharged for what was found to be "... a blanket re-
fusal to do any Saturday overtime work including a refusal
to work on Saturday, June 27 if asked or thereafter, at'any
job." (p.8) The grievor was a member of the Jewish faith,
and it was common ground that one of the tenets of his
religion is that~he not be involved with open fire from sun-
down on Fridays to sundown on Saturdays and that.this period
.
is a religious day of rest (p.2). Hi-s position with the
Company was as a repair welder.
The Collective Agreement in Arvin stipulated in Article
12.04 that :
Overtime shall be distributed as equally
as is practicable amongst the employees -
normally doing the work. In the event d
request to work overtime is made, the
company will consider d reasonable request
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On the basis of that Article, the panel stated, ,at p.8,
,I .' . . . if the company position is unrea'sonable in this.case,
' it would seem to.follow that just cause for dismissal di,d not
exist."
Article 3.02 of-the Agre.ement in Arvin stated that "no
employee shall in'any manner be discriminated against,... on
account of race, creed, colour or religion." The panel stated
at page 10
It would seem to us that insofar as Article
3:02 is concerned the Company must show that
it made reasonable efforts to accommodate
the griever. It is abundantly clear that
it did so on several occasions and thus no
violation of Article 3:02 would seem to be
proven.
It seems clear from these two cases that the employer
must make reasonable efforts at accommodation of religious,
practices where the need arises from time to time. The,Board
in Arvin, however, balked .at holding that a once-and-for-all
accommodation was required. It stated; at pages 9 and 10 of
its reasons:
The dilemna which faced the Company was this:
Because of the problem caused by the religious
beliefs of the qrievor, in order to accommo-
date the griever the Company would have to
either schedule production and job assign-
merits' so that he would not have to work Friday
night and Saturday or create a special cate-
gory for him based on ~the asstimptibn that all
his requests to be exgused from overtime
would be reaSonable ones which must be granted.'
In our view, however unfortunate it may be, it
would be asking the Company to qo too far to
require it to follow either of these alter-
natives.
c
-A suggestion was made by Mr. Muselius that the
discharge of the griever was a violation of
Article 3.02 of the Collective Agreement. This
provision states that "no employee shall in any
manner be discriminated against, . . . on accOunt
of race, creed, colour. or religion." He dlso
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discharge. There is no doubt that the
problem concerning the griever's willing-
ness to work on Friday evening or OR Saturday
arises from his religious belief. If these
arguments are valid, it would seem to follow
that a special case would have to be made for
the griever and that the work schedules would
have to be designed around his ability to work.
It appears from the evidence that this would
be quite difficult given the job requirements
of repair torch welders, and that the logical
result in the future would be that the Company
would either not hire any Jewish employees, or
having hired them would keep them at the
level of general labour where it would be
more easy to find replacements for them on
Friday evenings or Saturdays. This *would
clearly not be a satisfactory solution.
In a decision of a grievance rendered under the unjust
dismissal provisions of The Canada Labour Code (Part flI) -
following the hearing of Mr. Singh's grievance, a holding
similar to that in Arvin was reached: Wheeler v. Bank of
Montreal, Arbitration Services Reporter, Vol 4, No. 4. p. 1
(April 1980) The complainant became a member of the Seventh
Day Adventist Church and advised his employer that he could
no longer work Friday evening shifts at his job of computer
Sabbath of the operator. Friday evening is part of the
Seventh Day Adventist Church.
The employer rejected a number of a lternatives to the
employee working Friday evenings because
would have on the morale and work of'the
of the effect they
other employees.
Subsequently, the grievor was fired for Friday evening
absences.
The adjudicator, Mr. Howard 0. Brown, identified the
issue to be decided'on the grievance as
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. . . whether the bank had discriminated against
the complainant because of.his.religious
beliefs in terminating his employment con-
trary to The Canadian Human: Rights Act. (p.2)
.It is s
parently app
general appl
gnificant that th,e adjudicator here was ap-
ying The Canadian Human Rights Act, a law of
cation ,-to.the case before him, although there
ing in noth was
nat i on.
the Collective Agreement respecting discrimi- I I
The adjudicator ruled against the grievor, finding
: among other things, that the grievor had not,been ',assign~ed
any work or shift because of or with an intent to interfere
with his religious,beliefs." .The report also states at p.3,
Had the .employer made an accommodation for
the complainant as a result of his religious
beliefs, the adjudicator expressed the view
that it "...would . ..have discriminated in
his (the complainant's) favour to the pre~ju-
dice of-the other employees, and to (that of)
the emRloyer insofar as additional costs
might pertain."'
The adjudicator had also found that putting the heaviest
shifts on evenings and nights' on Monday and Friday "was based
on practical and n.ecepsary business considerations
part of the bank" and was thus a bona .fide occupat
on the
i~onal re-
quirement under section 14 of The Canadian Human Riqhts Act.
It will be seen that the 'adjudicator in Wheeler removed
from the Bank any responsibility to accommodate religious
practices, even 'on' an intermittent basis. To that extent, it
is out of keeping with the'ctimients in Arvin,and the holding
in Canada Valve, and we wou,ld de~cline to follow it.
It may also~ be seen that the adjudicat0.r in Wheeler has
not taken into acc'oun~tthe import of the decision of Professor
I
Pet,er Cumming, acting as a Board of Inquiry under The Ontario
.I .
-20 -
.
Ishar Singh brought a complaint of discrimination against
Security Investigation Services Ltd. alleging discrimination
on the ground of religion; S.I.S..had a policy requiring the
hiring of only clean-shaven persons who could comply with its
requirement that a hat be worn with its uniforms. Being a
Sikh Mr. Singh could-not comply, and did not apply for the
position.
The uniform requirement was neutral on its face, and not
directed against members of any particular religious faith.
In that, it was like the overtime policies in Arvin and Wheeler.
At pages 16 and 17 of his exhaustive and cogent reasons,
Professor Cumming summarizes the issues and the law as follows:
The Law
The legal issues in this matter are three-
fold. First, when the regulations of ai,
employer apply to all prospective employees
equally, without the intent of discriminating
against any religious group, but the result
of the application of the employment regu-
lations is to exclude one religious group,
is there discrimination within the meaning
section 4 (1) (a) of The Ontario Human
Rights Code? Is'the intent to preclude one
religious group a prerequisite to d viola-
tion of the statute or is it contrary to
the legislation simply to apply employment
regulations knowing the result will be to
preclude the religious group from employ-
ment? My finding is, as will be discussed
at length, that intent to discriminate is
not d prerequisite to establishing d con-
travention of The Ontario .Yumdn Riohts Code,
and that there can be discrimination wi rhin
the meaning of the statute if the result
of applying employment regulations is to
exclude one religious group.
The second issue then is - when is such
an employment regulation valid and when
is it invalid? In my opinion, an employ-
ment regulation neutral on the face of it,
i.e. one that applies to all employees or
prospective employees equally but has the
effect of exc?udiny one religious group,
is valid if it is shown t.hat the regu:d:ion
. <Z
.I’
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to the employer's business operations.
The third issue is ancillary to the
second issue. If an employment regu-
lation is neutral in its terms, but~has
the effect of excluding one religious group,
does the onus fall upon the'employer to
establish that the regulation is reason-
ably necessary to business operations,
or does the onus fall uponthe prospective
emp;oyee to establish that the regulation
is not rea‘sonably necessary to business
operations? In my opinion, for the reasons
to be discussed, the onus rests upon the
employer in suc~h a situation.
.At pages 31-32, after a thorough discussion of the American
jurisprudence, and the decision in Canada Valve, Professor
Cumming further states: .
If one falls back upon the philosophy
expressed in The'Ontario Human Rights
Code it follows that the onus should
fall upon the employer to demonstrate
that he is unable to reasonably ac-
commodate to a .prospective employee's
religious observance or practice with-
out undue hardship on the conduct of
his business, once a prima facie case
has been established of discrimination
through the application of the employer's
employment regulations.
In the Singh v. S.I.S. case, the.accommodation required was
the once-and-for-all accommodation of
. . ..not requiring <prospective Sikh
employees)to dispense with their
turbans and beards as a prerequisite
to employment as security guards with
Security. (p.37)
The Singh v. S.I.S. decision was ci;ed by Barton in Arvin.
It would appear to be the law of Ontario .on the question of
"indirect" discrimination on the g,rounds of religion. This~ type
of discrimination is referred to as "indirect" because, quite
without inte,nt on the part of the employer, its apparently
neutral employment~requirements have a disproportionately severe
impact on members of a particular group.
--
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Application of the Law to this case
The Grievance Settlement Board does not Purport to be
deciding a complaint of discrimination against the Ministry in
the same way that a Board of Inquiry would do so.
The Board is, however, mindful of its responsibility, to
apply the general law. -As stated in Brown & beatty, Canadian
Labour Arbitration, at pages 34 and 35:
Although at one time it was assumed that
an arbitrator would be acting in excess.
of his jurisdiction, if he applied the
terms of an otherwise'applicable statute,
it is now established that he is under
a duty to construe and apply any relevant
statute law. (footnotes omitted)
In our view, it is appropriate that we take into account
the provisions of the Code and decisions interpreting it in
reaching our decision here. It is all the more so because of
the statement in the preamble to the Collective Agreement
between the Employe,r and the O.P.S.E.U. that:
It is not conce
ployees could be sat sfactory if they were not in accordance
with the general law applicable in the Province.
How, then, are the principles in the cases to be app 1
here. The question of a "once-and-for-all" acccmcodation
the employee's religious practices is at stake. Aithough
I. The purpose of this dgreexezt between
The Employer aRd the L’nion ts to
establish and .naintain:
(a) satisfac:ory working conditions
and terms of en.~loy.~en: for all
employees who are subjec: to this
A~reemer;t, . . . .
vable that the working conditions of em-
ied
:0
Arvin
rejects that approach, it is submitted that the decision of
the @oard there was misconceived: although the 3card relied on
- 23 -
the Singh c'ase, its reasons make plain that it'did not und,er-
stand it; The Board in Arvin was of the view that the com-
plaint of Singh had been dismissed by Professor Cumming,
when in fact the ruling had been i'n Mr. Singh's favour. '
Singh v. S.I.S. places on the employer the burden of
showing that he would suffer undue hardship if an accommodatio.n
were to be made to an employee's religious practices.
We are. of the view that the Ministry has shown that its
would be an undue hardship to let Mr. Singh'carry out the ,,
~regular duties'of a correctional officer, among the prisoners,
if his capacity to wear protecti
Letting Mr. Singh patrol with a
ing his beard is not, however, t
ve equipment is diminished.
partner officer without shav-
he only "accommodation" that
the Ministry could make to his religious practices. We are
not satisfied that it would be an undue' hardship for the Ministry~
to find an alternative position for Mr. Sin‘gh that would'
ensure accommodation of his religious beliefs and practices
without undue hardship to him.
i
The Ministry was not able to satisfy us that it had
canvassed thoroughly other employment opportunities for which
Mr. Singh's capacities and education would fit him. He seems
to be well-educated, and healthy. 13 he is willing, when
pressed by the exigencies, to consider some sacrifice of
his religious scruples to get a job, it would not be out of
the qu.estion for him to consider re-location to preserve those
principles. It may we1 1 be that a position could be 'found as
-s-Y,
., . . :.
- 24 -
a caseworker, probation officer, or other worker, utiliz-
ing his sociology and criminology training, if a wide
enough canvass is made.
Accordingly, we order that Mr. Singh be reinstated
to the rank of corrgctional officer E, effective as of
the date of hearing in this matter. This means that he
is to have by way of "back pay" the difference between his
correctional officer fT salary and benefits, and what he -
has been receiving since his demotion. He should also have
restored his attendance credits, lost during his required
absence.
We think that the Ministry should. right at t:le
outset, have made greater efforts to find Mr. Singh an
appropriate position, the same as or equivalent to a
correctional officer E, instead of demoting him. At this
time, we do not presume to tell the Ministry what exact job
it should give Mr
however, that he
salary, retroacti
Ministry can now
. Singh. We do think it proper and fair.
should have his correctional officer n -
vely, and into the future as well. The
make appropriate efforts to find him a
proper position at the correctional officer n level, or -
equivalent.
l
Dated at Toronto this 6th day of November, 1980
M. iberts v- Vice-Chairman
I concur
A. r rortler - !4 e m 5 e r