HomeMy WebLinkAbout1990-1391.Kimmel & Leaf.91-10-07ONiARlO EMP‘OYES DE ‘* CcJ”RONNE
CROWNEMPLOYEES DE“ONT.4RIO
GRIEVANCE ,COMMlSSlON DE
SETTLEMENT RkGLEMENT
BOARD DES ~GRIEFS
BETWEEN
1391/90, 1931/90
IN THE RATTER OF AN ARBITRATION
unuar
THE CROWN EYPLOYEEB COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE BETTLEMBNT BOARD
OPSEU (Kimmel/Leaf)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Government SSrViCeS) Employer
W. Kaplan Vice-Chairperson
P. Klym Member
C. Linton Member
FOR THE
GRIEVOR
R. Anand
Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE
EMPLOYER
G. Anand
Counsel
Stringer, Brisbin, Humphrey
Barristers & Solicitors
HEARING December 20, 1990
June 20, 21, 1991
July 15, 1991
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Introduction r'
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By a grievance dated July 30, 1990, Sheila Kimmel, a Technical
Specialist with the Ministry of Government Services, grieves a
violation of a Collective Agreement "by not using discretionary
leave in a reasonable manner, to allow me,to meet religious
obligations without suffering a loss of salary or vacation time."
The settlement requested is "to be granted the requested leave with
pay, for religious observance." On December 20, 1990 this matter
came before the Board, at which time certain preliminary matters
were addressed. Subsequently the Kimmel grievance was consolidated
with the'grievance of Mr. Stephen Leaf. Mr. Leaf's grievance is
virtually identical to that of Ms. Kimmel.
It is useful to set out the provisions of the Collective Agreement
both grievors allege to have been infringed.
Article 1 - No Discrimination/Employment Equity
A.1 There shall be no discrimination practised by
reason of race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed, sex,
sexual orientation, age, marital status, family
status, or handicap, as defined in section 9(l)
of the Ontario Human Rights Code (OHRC).
A.2 It is recognized that in accordance with
section 13 of the OHRC, the Employer's
employment equity program shall not be
considered a contravention of this article.
Article 55 - Special & Compassionate Leave
55.1 A Deputy Minister or his designee may grant an
employee leave-of-absence with pay for not more
than three (3) days in a year upon special or
compassionate, grounds.
55.2 The granting of leave under this Article shall
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not be dependent upon or charged. against
accumulated credits.
Preliminarv Obiection
The only difference between the Kimmel and Leaf grievances is that
counsel for the employer argued that the Leaf grievance was
untimely. After hearing argument with respect to this issue, the
Board reserved its ruling. It is now convenient to set out the
employer's objection, the argument of the parties, and our
disposition of this preliminary objection.
Counsel argued that Mr. Leaf's grievance was out of time because
it was not filed in compliance with 'Article 27.2.2. of the
Collective Agreement. Article 27.2.2. provides:
If any complaint or differences is not satisfactorily
settled by the supervisor within seven (7) days of the
discussion, it may be processed within an additional ten
(10) days in the following manner:
Counsel argued that these time limits have not been complied with
and that, accordingly, the Leaf grievance should be dismissed. It
is helpful to set out some of the facts with respect to the
processing of this grievance.
On May 17, 1990, Mr. Leaf wrote Mr. Terry Ham, the Director of the
Technologies Branch of the Computer and Telecommunications
Services, to request "special leave-of-absence with pay (Article
55.1 of the Collective Agreement) for the observance of the Hebrew
religious High Holiday of Rosh Hashonna." Mr. Leaf had earlier
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been advised by; his supervisor that Mr. Ham was the Deputy
Minister's designee for the purpose of receiving Article 55
requests.
In his letter, Mr. Leaf drew Mr. Ham's attention to a Collective
Agreement between OPSEU and another employer in which leave with
pay for religious holidays was apparently provided for. On May 25,
1990, Mr. Ham replied to Mr. Leaf's letter denying his request:
Holiday entitlements under the Collective Agreement and
Public Service Act do not include the Hebrew High
Holidays. Any other Collective Agreement such as the
C.A.A.T. which you referred to in your letter is not
applicable.~ As you know, changes to present entitlements
outlined in the Collective Agreement can only be made
through negotiations between the Ontario Public Service
Employee's Union and Management Board of Cabinet.
Until such changes are made, we are all bound by this
Agreement.
You may however, request from your supervisor approval
for vacation days and/or a leave without pay for
observance of the High Holidays.
Unhappy with this response, and in the hope that the Deputy
Minister would "overrule" this designee, Mr. Leaf next wrote the
Deputy Minister of his Department:
Dear Mr. Caplice:
I am escalating my request for a special leave-of-absence
with pay (Article 55.1 of the Collective Agrement) for
the observance of the Hebrew religious High Holiday of
Rosh Hashonna, which occurs September 21-21, 1990.
This holiday is one of the most important in our
religion, as we spend the two days in prayer.
Thanking you in advance for your consideration.
On July 25, 1990, the Deputy Minister, Mr. Dennis Caplice, replied
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to Mr. Leaf. Mr; Leaf testified, however, tha$ he did not receive
this reply until after he filed his grievance. The reply denied
Mr. Leaf's request. It stated:
I am in receipt of your letter dated July 5, 1990
requesting special Leave of Absence with pay in order ,to
observe the Hebrew High Holidays. I am aware that you
had initially made the request to your director, Terry
Ham, who after careful consideration had denied this
request. As you know holiday entitlement under the
Collective Agreement and the Public Service Act do not
include the Hebrew High Holidays and normally, special
leave provisions are not applied for religious holidays
and therefore I must deny your request.
As stated in Terry Ham's letter dated May 25, 1990, you
may wish to request from your supervisor approval for
vacation days and/or a leave without pay for the days in
question.
On September 24, 1990, Mr. Leaf filed a grievance. Obviously, more
than ten days elapsed from the date of the Deputy Minister's letter
and the date that Mr. Leaf filed his grievance. And clearly, more
than ten days elapsed between the receipt of Mr. Ham's letter
denying the request and the filing of the grievance. It is on this
basis that the employer argued that Mr. Leaf's grievance was out
of time.
Employer counsel argued that Mr. Leaf should have filed his
grievance within ten days of receiving Mr. Ham's letter for it
represented an unsatisfactorily resolved "complaint or difference."
Counsel drew the Board's attention to the well-known decision in
Keelinq 45/78 (Prichard) and submitted, given the mandatory nature
of the time limits, and given that the Leaf grievance did not fall
within Section 18 of the Crown Employees Collective Bargaining Act,
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that the Board-.should find it was out of .time and therefore
inarbitrable. Employer counsel pointed out that under Article
27.16, "The Grievance Settlement Board shall have no jurisdiction
to alter, change, amend or enlarge any provision of the Collective
Agreement."
Mr. Leaf gave evidence explaining the apparent delay in filing his
grievance. This evidence need not be repeated in detail. Suffice
it to say that two years earlier, in 1988, Mr. Leaf made a simiiar
request to Mr. Caplice. (In 1989, there was no need to make such
a request because the High Holidays did not fall during the work
week.) In 1988, Mr. Leaf testified that he did not receive a reply
to his reguest .until the night before the start of his requested
leave. This reply was delivered to him at home by courier. It
should be noted that there was a slight conflict in this. evidence.
Mr. Trevor Moon, who was manager of Mr. Leaf's section in 1988,
testified to some delays in the processing of Mr. Leaf's request.
And he also testified that the letter was delivered to Mr. Leaf at
home on a Friday night, and that the holidays in question that year
were held on a Monday and Tuesday. We do not find this conflict
significant, for in either case, the reply was delivered to Mr.
Leaf after he had left work to begin his religious observance.
With this experience in mind, Mr. Leaf was not unduly concerned
when he did not receive a reply to his letter from the Deputy
Minister. When the High Holidays came and went without a reply,
Mr. Leaf then filed a grievance.
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Union counsel argued that in these circumstances it was not
incumbent upon Mr. Leaf to grieve the dispute until he received the
reply or-until he realized that he was not going to receive a
reply. Counsel pointed out that Article 55 does not require an
employee to choose, in making a leave request, between the Deputy
Minister "or his designee." The article did not require an
election between one or the other. The grievor, being unsatisfied
with the response of the "designee" was, accordingly, well within
his rights to also apply to the Deputy Minister. Following this
line of reasoning, the time period would only. begin to run
following the negative disposition of the request by the Deputy
Minister. It would be at this. point that a *'complaint or
difference" could'be~ said to. exist, and it was at this point that
Mr. Leaf filed his grievance. Accordingly, in counsel's submission
the grievance was timely and the Board had jurisdiction with
respect to it.
Disposition of the Preliminarv Objection
After having carefully considered the evidence and arguments of the
parties, we are of,the view that this preliminary objection should
be dismissed. It was the uncontradicted evidence of Mr. Leaf that
he. did not receive a copy of the letter from the Deputy Minister
denying his leave request until after he filed his grievance. We
have no reason to disbelieve this evidence. Moreover, a lengthy
delay in receiving a reply was consistent with Mr. Leaf's prior
returning to work following the High Holidays in 1990, after he
realized that a reply was not forthcoming.
In our view, these unique circumstances result in a finding that
the grievance is timely and therefore arbitrable. Article 55 does
not require an employee to choose between the Deputy Minister'or
his or her designee in makin9.a leave request. Had that result
been sought, the provision would have clearly required a special
leave application to be made to either the Deputy Minister or his
or her designee. In lhe instant case, Mr. Leaf applied to the
des-ignee, and when that failed to evoke a favourable response, to
the Deputy Minister. There is nothing in the Collective Agreement
precluding him from doing this. In the absence of Mr. Leaf's 1988
experience we might have found his grievance inarbitrable. However,
because he had that experience, in which he did not receive a reply
until the evening of the requested leave, and given his
uncontradicted evidence that he did not receive the Deputy
Minister's denial letter, we find that the time period did not
begin to run until after the requested leave had passed with no
reply from the Deputy Minister. The grievance was; therefore,
timely and we are taking jurisdiction with respect to it.
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experience when,.he was told his request was denied by a letter
delivered by courier to his home on the eve of the start of Rosh
Hashonna in 1988. Mr. Leaf filed his grievance within ten days of
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The Union Case ;a- :
Mr. Leaf testified first. Mr. Leaf is a member of~the Conservative
branch of-Judaism and he told the Board that his religious beliefs
require him to attend synagogue on Rosh Hashonna (2 days) and Yom
Kippur (1 day) (the "High Holidays"). The exact days of these
holidays vary from year to year. In some years, they fall during
the work week, in other years they fall on the weekend. In-1990,
Rosh Hashonna fell during the week, on Thursday, September 20th and
Friday, September 21st. Mr. Leaf explained the significance‘of
both holidays, and we take notice of the significance of the High
Holidays to observant Jews. Mr. Leaf testified that these are the
only Jewish holidays during which Conservative Jews must abstain
from attending work if they take place during the week.
In addition to testifying about the reasons for his apparent delay
in filing his grievance, Mr. Leaf told the Board that after he made
the first request to Mr. Ham he was not aware of any efforts by
management to investigate that request in order to find out more
about it.
.In cross-examination, Mr. Leaf testified that he has not always
refrained from working on the High Holidays, although he would
generally make an effort to do so. Since 1988, however, one way,
or another, Mr. Leaf has always taken the time off. In 1988, Mr.
Leaf's religious beliefs were strengthened as a result of a serious
illness. Prior to 1988, Mr. Leaf arranged the time off by making
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various arrangements such as agreeing to be "on-call" during
Christmas and Easter. On other occasions, Mr. Leaf took vacation
leave if he had days left and he testified that any requests to
schedule vacation leave for the High Holidays were always granted.
While Mr. Leaf's duties and responsibilities changed as. a result
of a secondment after the instant grievance was filed, in the
period before he filed the grievance he worked flexible hours,
including some weekends as required. He did not receive overtime
pay for overtime work, but he did take lieu time. Sometimes when
Mr. Leaf is away, his duties are assumed by others. Sometimes his
work is kept waiting until his return. In 1990, Mr. Leaf ended up
taking the two days as leave without pay.
The grievor Sheila Kimmel is also a member of the Conservative
branch of Judaism. She has been employed at the Ministry since
October 1985. On July 18, 1990, the grievor wrote her acting
supervisor, Nancy Richardson, requesting special leave of absence
with pay for the observance of Rosh Hashonna. On July 20, 1990,
Mr. Ram Jain, the General Manager of Customer Service and
Technology, wrote the grievor denying her request. His letter
stated:
Holiday entitlements under the Collective Agreement and
Public Service Act do not include the Hebrew High
Holidays and normally, special leave provisioris are not
applied for religious holidays.
You may, however, request from your supervisor approval
for vacation days and/or a leave without pay for
observance of these holidays.
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As suggested, the grievor took vacation days,;but she also filed
a grievance alleging a violation of the Collective Agreement.
Ms. Kimmel testified that she attended work on previous occasions
when the High Holidays fell during the week because she did not
know that there was a provision in the Collective Agreement under
which she could apply for a special leave. Moreover, Ms. Kimmel
was on probation during the initial part of her employment and was
reluctant to make any special requests during her probationary
period. In the summer of 1989, Ms. Kimmel became a union steward,
and in the result became more familiar with the provisions of the
Collective Agreement.
-Inpreparing forthe arbitration of her grievance, Ms. Kimmel
obtained copies of the special and compassionate leave policies of
a number of government ministries. Employer counsel objected to
the introduction of these policies on the basis that what one
ministry does is not relevant to the practices of another ministry
or to the interpretation of Article 55 of the Collective Agreement.
The Board, however, ruled that these documents were admissible and
employer counsel could, if she wished, make argument in closing as
to their relevance and weight.
Ms. Kimmel described visiting various government personnel offices
asking for copies of policies concerning the application of Article
55, in particular for purposes of.religious observance. From the
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Ministry of Cortictional Services, Ms. Kimmel.obtained a document
that stated, inter alia, "Normally, special and compassionate leave
provisions are not applied in the following
circumstances... religious holidays." The relevant extract from the
Ministry of Education's Internal Manual of Administration, which '.
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Ms. Kimmel obtained, does not make any reference to religious !
leaves, and states: "For more detailed information on the above
leaves, see the Ontario Manual of Administration, Volume 2, section
With respect to'the Ofl'some extracts
from that Manual were introduced into evidence on the first day of
hearing. These extracts indicate the evolution of a policy
concerning the granting of special leave for religious observance.
According to the extract from the Manual dated August 9, 1976:
A deputy minister may grant an employee leave-of-absence
with pay for not more than three days in any calendar
year upon special.or compassionate grounds.
The three days:
. . .
Should only be used for unforeseen personal emergencies
and for religious holidays.
The Manual dated August 21, 1978 uses similar language but then
goes on to provide: "Generally this leave should be granted only
when an employee has exhausted his/her accumulated vacation
credits." The ,Manual dated August 5, 1986 provides that Deputy
Ministers may grant employees leaves of absence with pay for not
more than three days in any calendar year on special or
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compassionate grounds. It does not, however,:make any reference
to religious observance, or any other grounds, for that matter.
Also introduced into evidence was a memorandum dated October 22,
1979, from the Ministry of Health concerning leave with pay. This
memorandum states:
Previously discretionary leave was only to be granted for
unforeseen personal emergencies and religious holidays;
now it may be granted for unforeseen personal or family
emergencies and soecial and comaassionate reasons but
aenerallv for religious holidays. Where specific
commitments have already been made to grant discretionary ; leave for future religious holidays, these should be
honoured (emphasis theirs).
In cross-examination, Ms. Kimmel testified that she works flexible
hours. Some weekend travel is required in Ms. Kimmel's position,
and if she is away for a short period of time, no one else is
.assigned to her duties. If Ms. Kimmel is away for a long period
of time then someone else is assigned to her duties.
In re-examination, Ms. Kimmel testified that the employer did not
ask her for any information about the nature of her request.
The third and final witness for the union was Donna Brown, a member
of management and the Manager of Human Resources and Planning
Development at the Ministry of Labour. Ms. Brown testified about
the Ministry of Labour's policy with respect to special leave, a
copy of which was introduced into evidence. It is useful to cite
certain sections of this document:
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: : POLICY
It is the policy of the Ministry of Labour to develop and
foster a flexible working environment which will contribute to the 'oirerall effectiveness and efficiency
of the workplace.
The Ministry recognizes that there is a wide range of
individual and family responsibilities which require that
employees be granted paid or unpaid leave.
The Ministry 'is committed, within the frameworkma;:
Management Board of Cabinet guidelines, to
reasonable accommodations for the varying needs of
employees for discretionary leave of absence for
justifiable personal reasons. These reasons. must be
clearly specified by the employee to enable management
to give appropriate consideration to the request for
leave.
Recognizing the over-riding responsibility to its
clients, leaves of absence will be scheduled where
possible to ensure a minimum disruption, to Ministry
programs and services. Reasonable notice shall be given
to the appropriate level of management concerned.
. . . .
PRINCIPLE
Decisions,related to the granting of discretionary leave
should be reasonable, consistent and equitable in
accordance with the particular circumstances of the
request and the Ministry's overall policies.
. . . .
GUIDELINES
When considering requests for discretionary leave,
managers should review the employee's specific
entitlements to ensure that, where applicable, the
employee's entitlement as granted under the Collective
Agreement and the Regulations to the Public Service Act
has been exercised.
Managers should ensure that leave requests are evaluated
within the context of legislative requirements, existing
ministry policy, sound management principles and the
particular circumstances of each case.
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Managerial"‘discretion should include the following
considerations:
- the decision must be made in good faith and
without discrimination;
it must be a genuine exercise of
discretionary power, as opposed to rigid policy
adherence;
- considerations must be given to the merits
of the individual application under review:
- all relevant facts must be considered and
conversely, irrelevant considerations must be
rejected.
LEAVE WITH PAY
SPECIAL AND COMPASSIONATE CIRCUMSTANCES
3 Days or Less
Leave of absence for compassionate reasons and special
leave' in extenuating personal circumstances may be
granted to a maximum of three days in a year at the
discretion of the Ministry without loss of pay.
Special and compassionate circumstances include but are
not limited to the following:
- family crisis/emergency situation:
- unforeseen medical or other emergencies:
- death of close relatives other than those
covered under bereavement leave:
- an employee undergoing an unusual personal
situation who has no vacation credits.
- up to two days per year for major religious
holidays or specific religious observance not
covered as statutory holidays.
[Remainder of Policy omitted.]
Ms. Brown was involved in the development of this policy and
testified that it came into force in August 1990. Prior to the
implementation of this policy, the Ministry of Labour did not qrant
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leave of absence'with pay for religious observance.
Ms. Brown testified generally about the handling of leave requests
at the Ministry of Labour, and told the Board that initially the
new policy did not include two days for religious observance. That
provision came about as a result of a letter from the Chair of the
Pay Equity Tribunal, who in 1990 wrote a memorandum to the Deputy
Minister of Labour raising the issue of whether leave of absence
with pay should be given for religious observance. The Ministry
of Labour, considered the matter, and Ms. Brown testified that in
developing this aspect of the policy senior management was
equivocal about whether or not to change the status guo, but that
there was cons.iderable recognition of the diversity of the
Ministry's labour force, as well as the diversity in the population
more generally. Ministry officials were also, needless to say,
well 'aware of various government initiatives respecting employment
equity and human rights, and it was determined that leave should
be extended for up to two days of religious observance per year.
Ms. Brown testified that the Ministry of Labour selected two days
a year because in looking at the statutory holidays it was clear
that two of them related to Christian observance, Christmas and
Good Friday. By providing up to two days for persons who were not
of the Christian faith, or indeed Christians who celebrated these
holidays on different dates, such as the Eastern Rite of Orthodox
Christians, the Ministry was seeking to give people of other
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religious faiths'an equitable opportunity to celebrate at least two
of their holidays. (It should be noted, however, that the
Collective Agreement provides for three paid "Christian holidays":
Christmas, Good Friday and Easter Monday.)
Ms. Brown is in charge of the administration of the policy at the
Ministry of Labour and she told the Board that it is discretionary. ~.
Ms. Brown testified about her experience to date with the policy.
So far, and it has only been in effect since August of 1990, no
applications for special leave for religious observance have been
denied. There have, however, been some difficult cases, and one
of them involved a request for special leave for Chinese New Year.
The issue raised in this case was whether Chinese New Year was a
religious holiday. Initially, Ministry officials considered. it to
be an ethnic holiday and not a religious one. However, inquiries
were made to the Chinese community and the Ministry was advised
that for Buddhists, Chinese New Year had religious connotations.
Accordingly, the request was granted.
In the period September 1, 1990 to March 31, 1991, 83 employees
were granted special leave for a total of 105 days. A chart was
introduced into evidence indicating that special leave was given
for Lent, Good Friday and Easter Monday for the Eastern Rite, for
Ukrainian Christmas, for the celebration of an unspecified Hindu
holiday, for Chinese New Year, for Islamic New Year and for Rosh
Hashonna. Some leaves were also given for unspecified religions
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and holidays. EMS. Brown testified that if these figures were
applied to the Ministry of Labour work-force on an annual basis,
the cost of granting up to two days of religious leave annually was
approximately one person year with an estimated cost of $50,000.
In cross-examination, Ms. Brown agreed that in implementing this
new policy the Ministry of Labour did not intend it to be an
interpretation of Article 55. Rather, what the Ministry was trying
to do was to be as flexible as possible so as to meet the needs‘of
its own employees. Ms. Brown testified that it was not intended
that this policy should apply to other government ministries. Ms.
Brown also testified that there were 80,000-90,000 employees in the
Ontario Public Service.
In re-examination, Ms. Brown testified that while this policy was
not intended to interpret the Collective Agreement, it‘was also not
intended that this policy should violate the Collective Agreement.
The Emulover's Case
The union case having been completed, the employer ca .lled its f 'irst
witness, Mr. David Girdwood, Mr. Leaf's immediate supervisor in the
period preceding the leave request and the filing of the grievance.
Mr. Girdwood testified that in April or May of‘1990, Mr. Leaf came
to see him with a draft of his memorandum requesting special leave.
Mr. Girdwood was new in his position and had not previously
received a request of this kind.
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Mr. Girdwood consulted the Manual of Administration and Ministry
of Government Services Policy and Procedures for guidance. Mr.
Girdwood then suggested that Mr. Leaf make the request to Mr. Ham,
the director. After Mr. Ham received Mr. Leaf's letter, he asked
Mr. Girdwood to investigate and to report back on the nature of the
request and the reasons for it. Mr. Girdwood then approached Mr.
Leaf and they met for approximately one hour. Mr. Girdwood then
reported back to Mr. Ham and told him that there did not appear'to
be anything unique about Mr. Leaf's request. After Mr. Ham wrote
Mr. Leaf a letter denying Mr. Leaf's request, Mr. Girdwood had a
talk with Mr. Leaf and explained to him that as his request was for
the observance of an annual holiday, it was not considered special
or ,significant. Mr. Girdwood testified that he was aware that Mr.
I Leaf had made similar requests in the past, but that this was not
a consideration in his investigation of the 1990 request.
In cross-examination, Mr. Girdwood testified further about his
meeting with Mr. Leaf and explained that the purpose of it was to
give Mr. Leaf .an opportunity to outline his request and to explain
any special circumstances. Mr. Girdwood testified that the purpose
of the meeting was not to confirm an already-made decision, but to
find out more about the special leave request. Mr. Girdwood
reviewed the Manual of Administration and noteti that it provided
that special leaves for religious holidays were not normally
granted. Mr. Girdwood testified that the Ministry of Government
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Services documents he reviewed simply dealt with the delegation of
authority for making the decision.
In his evidence, Mr. Girdwood elaborated why he came to the
conclusion that the request was not special. The leave was sought
for an event which was predictable and recurring. Mr. Leaf told "
Mr. Girdwood that there was nothing different about the celebration (
in 1990 than in previous years and that led Mr. Girdwood to
conclude that the event was not special. No other factors, such ,
as whether or not Mr. Leaf couid be replaced while absent or the
cost of granting the request, entered into his recommendation to
Mr. Ham. Mr. Girdwood also concluded in making this recommendation
that he was not acting discriminatorily.
Mr. Terry Ham also gave evidence. In the period prior to the
filing of the grievance, Mr. Ham was the Director of the Branch and
the Deputy Minister's designee. Mr. Ham recalled receiving Mr.
Leaf's initial request for a leave, and when he received it he
called Mr. Girdwood in for a meeting. The purpose of this meeting
was to ask him to investigate the request as well as government
policies pertaining to it. Mr. Girdwood conducted this
investigation and learned "that there was nothing unusual about the
request." He then returned to report his findings to Mr. Ham.. The
.two men then had a general discussion about the matter, and then
Mr. Ham signed the letter of May 25, 1990 denying the request.
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In.explaining why he denied the request, Mr. Ha?, testified that he
did not consider the leave special and that there were other
vehicles that could be used to take the time off such as vacation
credits or leave without pay. Mr. Ham testified that Mr. Girdwood
told him about the Manual of Administration and that he did not
recall any other considerations affecting his decision.
In cross-examination, Mr. Ham testified that he did not actually
look at any of the policies or procedures. The primary reason the
leave was not granted was that it was not special, it was not' an
emergency. It was a regular annual event that could be scheduled
and planned for. Mr. Ham was asked about his und~erstanding of the
requirements of the policies and procedures, and he testified that
he understood them to provide for leave for special events like
emergencies, which were unexpected. Mr. Ham relied on what Mr.
Girdwood told him, namely that there was nothing in the Manual of
Administration that would support Mr. Leaf's request.
Mr. Jain also gave evidence on behalf of the employer and he
testified with respect to the Ximmel grievance. Mr. Jain is a
General Manager at the Ministry of Government Services, and he
manages two branches of the Computer Technical Services. Mr. Jain
testified that Mr. John Hendrickson was Ms. Kimmel's manager and
tha-> Mr. Hendrickson reported to him.
When Mr. Hendrickson received Ms. Kimmel's request of July 18,
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1990, he gave i.t.to Mr. Jain and the two men had a meeting about
it. Mr. Jain asked a number of questions about the request,
including the question of what had been done in previous years, and
what was "special" about this particular request. Mr. Jain was
also told about a conversation between Ms. Kimmel and Ms.
Richardson, and he arranged to meet with personnel in order to
discuss the matter further. Tracy Bain of Personnel provided Mr.
Jain with a copy of the Ministry of Government Services guidelines
on special and compassionate leave.
These guidelines explain. some of this Board's jurisprudence with
respect to the standard of review of the exercise of management's
discretion as set out in Kuvnties 513/84 (discussed below). It
also includes a check-list of questions-- to be considered in
exercising that discretion. For "Ceremonies and celebrations" the
following appears:
- what makes this an exceptional case
- what is the nature of the occasion
- why is the employee's attendance required
- how important is attendance to employee
- could occasion be conducted during non-working hours
- what would be consequences of employee not attending
After considering these questions and having determined that he had
sufficient information to reply to the request, Mr. Jain contacted
23
Personnel and asked them to draft a reply to:Ms. Kimmel for his
consideration. Mr. Jain did not speak to Ms. Kimmel because he
felt that he had enough information to make his decision. In
making reference to alternatives available to the grievor, such as
taking vacation leave, Mr. Jain was anxious to ensure that if the
holiday was important, the grievor would not be'precluded from
celebrating it.
Mr. Jaintestified that there are approximately 360 people employed
in his area, and about 3600 in this Ministry. In general, when one
worker is away there is enough strength within the area to.take
over critical functions. Supervisors are also knowledgable, and
Mr. Jain experienced no difficulties in replacing Ms. Kimmel when
.she took the two days off.
In cross-examination, Mr. Jain testified in more detail about the
decision-making process. For example, he may have discussed with
Ms. Bain of Personnel what was meant by the term **special.*1 He
also asked how other Jewish members of Ministry staff handled
Jewish High Holidays. Mr. Jain learned that practices varied.
Some Jewish employees took the day off without pay, or took it as
vacation. Other Jewish employees went to synagogue after work or
made arrangements to attend during work by working extra hours at
other times. Mr. Jain did not propose these alternate arrangements
to Ms. Kimmel because he understood from her request that what she
wanted was two full days, and he determined that two full days for
.a
24
religious observance was not what was meant by: special leave.
Mr. Jain was referred to his denial letter and was asked where in
Ministry policies did it say that normally special leaves were not
granted for religious holidays. Mr. Jain testified that he
requested a draft denial letter and that he agreed with the,letter
that was provided to him and so he issued that letter.
Mr. Jain was also asked what was meant by the term special. His
testimony mirrored that of Mr. Ham which was to the effect that it
did not include annually recurring events that could be scheduled.
Very simply, Mr. Jain interprets the term special to mean something
unusual, something beyond the control of the individual, something
which cannot be planned for. Mr. Jain was asked whether he asked
Ms. Kimmel why the event was special, and as he earlier testified,
he had not done so.
Mr. Jain was also asked whether Ministry policy changed as a result
of Article A coming into force on June 15, 1990. Mr. Jain recalled
having a discussion about its implications with Ms. Bain,, but he
did not recall Article A having any influence upon the exercise of
his discretion.
The evidence having been completed, the matter proceeded to
argument.
25
Araument ;
Union counsel made three alternative arguments on behalf of the
grievors: First, that the exercise of discretion in both cases
constituted adverse impact discrimination contrary.to Article A of
the Collective Agreement; second, that the exercise of discretion
constituted direct discrimination on the ground of creed: and . .
third, that the exercise of 'discretion was improper under the
standard of review developed and employed by, this Board prior to
the coming into force of Article A. It is convenient to set out
each of these arguments in turn.
$A I.
"Adverse impact discrimination" was described by Mr. Justice
McIntyre in Re Ontario Human Riahts Commission et al. and Simoson-
Sears Lt . a(1985123
It arises where an employer for genuine business reasons
adopts a rule or standard which is on its face neutral,
and which will apply equally to all employees, but which
has a discriminatory effect upon a prohibited ground on
one employee or group of employees in that it imposes,
because of some special characteristic.of the employee
or grow, obligations, penalties, or restrictive
conditions not imposed on other members of the workforce
(at 332).
Adverse impact discrimination is concerned with impact, not intent,
and in this case the court went on to find that consistent with the
provisions and intent of the Ontario Human Riahts Code, there Was;
in the case of adverse impact discrimination, a duty to
accommodate, "in other words, to take such steps as may be
reasonable to accommodate without undue interference in the
26
operation of the'employer's business and withqut undue expense to
the empl.oyer" (at 335). In the case of adverse impact
discrimination the employer's discriminatory rule or policy need
not be struck down. Its application, however, may be subject to
modification in order to eliminate the impact of the
discrimination.'
In Alberta Human Riahts Commission v. Central Alberta Dairv Pool,
(1990) 72 D.L.R. (4th) 417 at 439, Madame Justice Wilson makes some
observations with respect to undue hardship:
I do. not find it necessary to provide a comprehensive
definition of what constitutes undue hardship but I
believe it may be helpful to list some of the factors
that may be relevant to such an appraisal: I begin by
adopting those identified by the board of inquiry in the
case at bar - financial cost, disruption of a collective
agreement, problems of morale of other employees,
interchangeability of work force and facilities. The
size of the employer's operation may influence the
assessment of whether~a given financial cost is undue or
the ease with which the work force and facilities can be
adapted to the circumstances. Where safety is at issue
both the magnitude of the risk and the identity of those
who bear it are relevant considerations. This list is
not intended to be exhaustive and the results which will
obtain from a balancing of these factors against the
right of the employee to be free from discrimination will
necessarily vary from case to case.
In the case at bar the board of inquiry found as a fact
that concerns of cost, disruption of a' collective
agreement, employee morale and interchangeability of work
force did not pose serious obstacles to accommodating the
complainant!s religious needs by permitting him to be
absent on Monday, April 4, 1983. Indeed, it would be
very difficult to conclude otherwise in light of the
existence of a contingency plan for dealing with sporadic
Monday absences. If the employer could cope with an
employee's being sick or away on vacation on Mondays, it
could surely accommodate a similarly isolated absence of
an employee due to religious obligation. I emphasise
once again that there is nothing in the evidence to
27
suggest thait Monday absences of the complainant would
have become routine or that the general attendance record
of the complainant was a subject of.concern. The ability
of the respondent to accommodate the complainant on this
occasion was, on the evidence, obvious and, to my mind,
incontrovertible. I therefore find that the respondent
has failed to discharge its burden of proving that it
accommodated the complainant up to the point of undue
hardship.
Union counsel pointed out that in Ontario the Code contained a
statutory definition of undue hardship and argued that in the
instant cas.e, adverse impact having been established, an
accommodation obligation up to the point of undue hardship came
into effect.
Applying the facts to the law, counsel submitted that the employer
has adopted a rule that special leave will not be granted to anyone
for religious holidays. Having adopted that rule, it exercised its
discretion to deny to the grievors special ,leave in order to
celebrate the High Holidays. This required the grievors, as
observant. Jews, to choose between earning a day's wages and
participating in the ~most important religious observance of their
faith. The result of the application of the ostensibly neutral
rule, therefore, in counsells view, constituted adverse impact
discrimination and imposed on the employer a legal obligation to
accommodate the grievors up to the point of undue hardship.
The accommodation obligation was not net, in union counsel’s view,
by offering the grievors the opportunity to use their vacation
credits or to take unpaid leave, because both of these alternatives
.2a
are available ti all employees at any time..in the sense that
vacations and unpaid leaves cannot be unreasonably withheld and as
a result of the fact that in both grievers' cases there were no
operational requirements mandating their presence at work.
Moreover, neither of these "accommodations" are in fact
accommodations, because the employees are still placed in a
disadvantaged position should they choose to use their vacation pay
or should they choose to forego pay by taking unpaid leave. This,
simply put, was the "adverse impact." In counsel's view something
more was required to constitute accommodation in the face of this
adverse impact discrimination.
In counsel's submission, the wording of Article A clearly indicated
that the parties to the Collective Agreement intended to
incorporate human rights concerns and the Ontario Human Riohts Code
itself into the Collective Agreement. The relevant sections of the
Code provide:
4. Every person has a right to equal treatment with
respect to employment without discrimination because of
race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, age, record
of offences, marital status, family status or handicap.
10(l) A right of a person under Part I is infringed where
a requirement, qualification or factor exists that is not
discrimination on a prohibited ground but that results
in the exclusion, restriction or preference of a group
of persons who are identified by a prohibited ground of
discrimination and of whom the person is a member, except
where,
(a) the'requirenent, qualification or factor is reasonable and bona fide in the circumstances: or
29
(b) it is declared in this Act, other than in
section 16, that to discriminate because of
such ground is not an infringement of a right.
(2) The Commission, a board of inquiry or a court shall
not find that a requirement, qualification or factor is
reasonable and bona fide in the circumstances unless it
is satisfied that the needs of the group of which the
person is a member cannot be accommodated without undue
hardship on the person responsible for accommodating
those needs, considering the cost, outside sources of
funding, if any, and health and safety requirements, if
any.
Union counsel argued that there is a discernable trend at this
Board, and among arbitrators generally, to pay heed to human rights
concerns and'hunan rights legislation: legislation which has been
described.as "quasi-constitutional" in nature. For instance, in
Re Wentworth Countv Board of Education 14 L.A.C. (3d) 310 (Devlin),
the Board found that the employer had exercised its rights in a
manner that was discriminatory and that denied the'grievor equal
treatment because of her physical handicap: "In consequence, that
right was exercised in a manner which is contrary to public policy
as enunciated in the Human Riohts Code. 1981 (at 325). And in
Bousauet 541/90 (Gorsky) the Board held: "While it is not within
the jurisdiction of a board of arbitration to enforce the
provisions of the C-g&, it cannot ignore the general law of the
land where there is a conflict between the collective agreement
provisions. and the relevant statutory provisions" (at 14). It, is
noteworthy that Bousauet was decided under the predecessor
Collective Agreement, that is prior to the coming into force of
Article A.
,
30
Counsel referred the Board to Re Rothmans. Benson & Hedqes Inc. 10
L.A.C. (4th) 18 (R.M. Brown), where the union alleged that the
employer violated the collective agreement and the Human Riohts
Code by refusing to allow an injured employee to return to work
because of an injury preventing that employee from performing some
tasks. In the course of his reasons for decision the arbitrator
considered at some length the jurisdiction ,of a board of
arbitration to apply the Code.'and he concluded that the Board
possessed such a jurisdiction where it was of the view that 'the
collective agreement was in conflict with the Code. (See also &
Brass Craft Canada, Ltd. 11 L.A.C. (3d) 236 (Roberts).)
In counsel's view, Article A introduced an important new element
to the Collective Agreement, and it did so in a context well known
to the parties, namely the developing nature of the duty to
accommodate as articulated by Canadian courts and as adopted and
applied by boards of labour arbitration. counsel did not argue
that Article A was a paramount provision; rather, in his
submission, it was necessary to read Article A alongside the other
provisions of the Collective Agreement. Read alongside Article 55,
the accommodation requested by the union in this case was perfectly
consistent with the Collective Agreement. Union counsel noted,
however, that' there might be other cases where greater
accommodations could be asserted and should be available.
Counsel concluded his submissions with respect to his first
31
argument by noting that there was no evidence of possible
interference in the operational requirements of the Ministry by
accommodating the grievors and with some observations on the cost
of accommodating religious beliefs in the Ontario Public Service.
These observations were extrapolated from the evidence of Ms. Brown
from the Ministry of Labour. Based on that evidence, and a
workforce of approximately 90,000 employees, counsel calculated a
maximum annual liability to the province of approximately $2.5
million which amounts to l/200 of 1% of the province's $46 billion
budget. An expenditure of this kind did not constitute undue
hardship on the part of the employer.
Direct 2.
Union counsel also argued that the policy in question, which is
that Article 55 special leave is not normally granted for religious
observance, constituted direct discrimination. In counsel's view,
direct discrimination was established because the policy applied
to minority religions. Put another way, the policy in effect said
that special leave would not be granted to Jews, Moslems, Buddhists
and others who wished special leave to attend to their religious
obligations. This, in counsel's view, was discriminatory. If
there were 20 statutory or Collective Agreement religious holidays
direct discrimination could not be established because all
employees would be treated the same. In the instant case, this
was not so because there were three religious holidays, Christmas,
32
Good Friday and' Easter Monday, and as a result, members of
religious minorities were being discriminated against. Counsel
argued that in exercising its discretion under Article 55 the
employer could not do so in a discriminatory way. It having done
so, both grievances should, counsel submitted, be upheld.
3. That the exercise of discretion was imoroner
Union counsel argued that a review of the jurisprudence established
that the exercise of discretion in both the Leaf and Kimmel cases
failed to meet the requirements established by this Board. In this
regard counsel referred the Board to Kuvnties 513/84 (Verity).
This case concerned the employer's refusal to authorize a special
leave of absence resulting from the grievor's failure to attend
work on February 28'; '1984 as a result of inclement‘weather. What
is material to .the instant case are the criteria set out by the
Board with respect to the extent of arbitral review of management's
discretion. The Board observed that "there can be no doubt that
management is given broad discretionary powers under Article 54
[now Article 551 to grant or refuse a special request for paid
leave of absence (at 14). The Board then went on to state:
In cases involving the exercise of managerial discretion,
Boards of Arbitration generally hesitate to substitute
their view for that of the decision-maker, which is a
recognition of the fact that Boards have less familiarity
than does the Employer with the exigencies of the work
place. However, arbitrators must ensure that decisions
are made within the confines of certain minimum standards
of administrative justice. Those administrative law
concepts relating to the proper exercise of discretion
include the following considerations:
33
1) The decision must be made in good faith
and without discrimination.
2) It must be a genuine exercise of
discretionary power, as opposed to rigid policy
adherence.
3) Consideration must be given to the merits
of the individual application under review.
4) All relevant facts must be considered and
conversely irrelevant consideration must be
rejected.
In the Xuvnties case the Board was not satisfied that the emploker
had given adequate consideration to the above-noted factors, and
determined that it was .unable to find a genuine, exercise of
discretionary power as distinct from rigid policy adherence.
Accordingly, the grievance was allowed.
In Leoer & Lesacy 506/87 (Dissanayake), the Board was again called
upon to adjudicate a special leave.grievance. In this case, two
employees were prevented from attending work because of bad
weather. Both absences were charged against vacation credits.
Introduced into evidence at the hearing were government documents
indicating that "normallylt special leave would not be granted for
"weather conditions." An employer witness testified that he
generally followed this policy.
After citing the criteria set out in Kuvnties the Board stated that
it did not
. . . believe the employer satisfied anything other than
the first of the above-criteria. The Board is
34
particularly troubled by the employer's complete failure
to make a reasonable attempt to investigate and consider
each grievor's individual circumstance to arrive at a
reasoned decision. From all of the evidence, it can
fairly be said that [the employer] made his decisions
solely on the basis of'his general familiarity with the
winter weather in Sudbury and paid no attention
whatsoever to the individual circumstances. The grievors
provided their reasons for absence in their occurrence
reports. If the employer needed any further explanation
or further particulars it is its responsibility to demand
that. This was not done. On the contrary the requests
were denied without any inquiry being made of the
grievors, who would have been readily accessible to
management at the work place.
Also disturbing to the Board was the apparent failure of the
employer to follow that part of its policy requiring management to
give full and proper consideration to the particular qerits of each
application for special and compassionate leave before deciding to
grant or deny that leave. The Board found that:
While the failure to investigate or consider the
individual merits of each grievor's request for leave by
itself renders the employer's exercise of discretion
defective, all of the circumstances indicate that the
internal directive that'l'article 55 does not normally
apply to weather conditions" influenced the employer much
more than it is prepared to admit. The evidence suggests
that it was the existence of this policy that led [the
employer] to be so disinterested in the grievers'
personal circumstances. The Board has previously held
that denial of leave under article 55 by an application
of an arbitrary policy that weather conditions are not
covered by that article and without considering the
particular circumstances does not constitute a proper
exercise of discretion . . ..To the extent that the employer
relied on such a policy to the exclusion of the merits
of the requests of the grievors, the employer did not
properly exercise its discretion as contemplated by.the
collective agreement.
In summary, the board concludes that the procedure
adopted by the employer in dealing with the grievors'
requests under article 55 was seriously flawed, by its
failure to gather and consider the merits of each request and by its application of an arbitrary rule that article
55 does not apply to weather conditions. While adverse
35
weather in;*‘every case will not entitle an employee to
special leave the employer must consider all of the
relevant facts in deciding whether the particular circumstances faced by the applicant entitles him or her
to special leave. The employer failed to consider these
particular circumstances because of its reliance on an
arbitrary rule (at 11-12).
Accordingly, the grievance was allowed and the employer was
directed to grant special leave to the grievors. Union counsel
also referred to Marcoux 257/88 (Kates) and Ford 1528/87 (Wilson),
where the Board held that simply because an event was pre-arranged,
did not preclude it from coming within the ambit,of special leave.
With respect to the term "special leave" counsel drew the Board's
attention to a number of dictionary definitions of the term. The
Oxford English Dictionary, for example, defines the word special,
inter alia as %otable,~important, distinguished", and "marked off
from others of the kind by some distinguishing qualities .or
features, having a distinct or individual character.", Funk and
Wagnalls dictionary includes in its definition of the word:
"Pertaining to one or more individuals as distinguished from the
class to which they belong." Counsel pointed out that the
principal reason both requests were denied was because the employer
reached the conclusion that the events were not special
they were of a recurring nature. In this regard, union
argued that while one definition of special might be an
or non-recurring event, it was just that, one definition
counsel
isolated
, and he
because
again drew the Board's attention to some of the other definitions
of the term.
. .
36
Counsel also argued that the "special" nature of religious leave
has been made apparent by numerous decisions of Canadian courts in
cases of religious discrimination. Some of these decisions are
reviewed in this award.
Applying the-Board's jurisprudence with respect to the standard of
review, union counsel briefly canvassed some of the reasons given
by the employer for the denial of the special leave and argued that
the employer, in both the Leaf and Kimmel cases, failed to conduct
a proper investigation and applied pre-existing policy in a
mechanistic way in order to deny both qrievors applkation for
special leave. Moreover, in neither case were any alternatives
~. .- __ proposed or canvassed. Rather, in both cases, the employer simply
denied the requests, and in the case of Ms. Kimmel did not even
discuss with her the reasons for her request. Counsel argued that
the conduct of the employer in both cases failed to meet the
standards established in the long-standing jurisprudence of this
Board, and submitted that the grievances should be allowed on this
basis.
Conclusion to Union Aroument
Union counsel submitted that the decision to deny special leave to
Mr. Leaf and Ms. Kimmel constituted either or both adverse and
direct discrimination and should also be set aside on the basis
that the employer failed to properly exercise its discretion
z
37
according to the'standards set out by this Board. Counsel pointed
out that the decision was discriminatory in another sense as well.
Employees of this same employer with the Ministry of Labour
received special leave to attend to their religious holidays, but
employees of this ministry did not. Counsel pointed out that there
~. is only one employer, and the policies of that employer in one
ministry were relevant to its actions in another.
Finally, counsel drew the Board's attention to the Faoan 657/80
(Barton) decision of this Board. In Faaan, the grievor applied for
special paid leave to attend High Holiday services. The special
leave provisions of the collective agreement in Faoan are identical
to those in the instant case. Ms. Fagan's request was denied, and
she was advised that she could--use either vacation credits or
request a leave of absence withou.t pay. The Board held that:
The bona fa of the grievor's religious belief is not
in dispute in this matter and we have heard no evidence
which suggests that the Ministry, which deals with a
number of requests similar to hers each year, denied the
request in 1980 because it did not judge her to be
sufficiently devout. Additionally, there is no evidence
that she is treated any way different from others of her
religion or of other~religions. It is an undeniable fact
however, that certain Christian holidays are included in
the holiday schedule and that she is entitled to those
holidays whether she wishes them or not.
The approach to be taken by Arbitrators to refusals of
leave of absence.is a matter which has been dealt with
in the private sector and by this Board on other
occasions. Although this case is not technically one of
denial of leave of absence but of denial of pay for a
granted leave of absence, the approach would seem to be
appropriate. That approach is that management must be
fully informed about the circumstances of the request, must address it objectively and without discrimination,
and must apply reasonable criteria.
-3 8
.:
With respect to the question of whether or not the
employer took an objective and informed approach to her
application, we have no reason to doubt that it did. In
the first place it appears to us that both Mr. Abrams and
Mr. Service were fully informed about her situation.
With respect to the question of whether or not irrelevant
criteria were taken into account we are somewhat troubled
by the reference in the reasons for denial to the
existence of possible vacation credits. If this were the
sole reason for the refusal.we would feel that it had
been unreasonably made.
The major question involved here is whether the employer
has fettered its discretion by establishing a general
policy that applications of this sort are not
applications which can be granted under Article 54.
Management is faced with a substantial number of requests
of this sort each year and has established a general
policy to deal with them. We feel that it is not
inappropriate for management to do this! provided that
it fairly considers each case on its merits. It has the power to establish its interpretation of Article 54 and
to indicate in advance in a general way the sorts of
criteria is will apply in considering applications.
This Article is somewhat different from the leave ~of
absence provision...of the Agreement. Article 54 refers
to "Special and Compassionate Leave." This Article was * considered in Freeman (87/80), in which decision our
Chairman. Weatherill indicated that it might be too
restrictive an interpretation of that Article to limit
it to emergency situations. That does not appear to have
been done in this case.
This application is not a compassionate one but rather
a special one. Special has been defined in various
dictionaries such as Oxford or Websters, as "peculiar to an individual@', "exceptional in amount, degree or
intensity", "distinguished by some unusual quality", "unique", "not part of a regular series". We feel that
there is some force in the argument that an annually
recurring holiday .of the sort considered here is.not
appropriately to be considered as a special circumstance,
and do not feel that the situation falls within Article
54. Accordingly, we are in agreement that the deni.al.of
her request was a reasonable one....
It seems to us that the answer to the problems of
religious holidays which are not presently included in
the holiday clause, is to establish floating holiday provisions in that clause. This would ensure that
39
persons of-all religions other than Christianity, would
have available to them one or possibly more days upon
which they could exercise their religious beliefs (at 3-
5).
Counsel argued that there were a number of reasons why the m
decision should not be followed. w, very simply, was decided
before the advent of Article A, not to mention before the notable
devalopments in Canadian law respecting the duty to accommodate.
In any event, Counsel pointed out that the Divisional court in Her
Maiestv the Oueen (Ministrv of Correctional Services) v. OPSEU
IDUDUiS) et al (unreported decision, May 8, 1991) expressed some
doubt about the binding effect of earlier decisions as articulated
in the Chairperson's decision' in Blake (1276/87).
By way of remedy/union counsel sought a declaration from the Board
granting each of the grievors two days' pay or restoration of their
vacation credits.
Emnlover Aroument
Counsel for the employer submitted that in denying both grievers'
requests, the employer did not exercise its discretion in a
discriminatory fashion, nor did it violate any provision of the
Collective Agreement Counsel began her submissions with the
observation that the issue before the Board was the conduct of the.
Ministry of Government Services. In this regard, employer counsel
pointed out that there are 26 different ministries in the
government of Ontario and that the Public Service Act authorizes
40
Deputy Ministers'to run their own ministries. :This may result in
different practices in the different ministries and counsel argued
that the practices of one ministry do not bind any other ministry.
In counsel's submission, the denial of special leave to Mr. Leaf
and Ms. Kimmel did not involve an improper exercise of discretion
under Article 55.1. Counsel reviewed the evidence with respect to
the investigation of the Leaf request and pointed out that the
employer conducted a thorough investigation, which involved
interviewing Mr. Leaf, and reviewing the Manual of Administration
and the Collective Agreement. After conducting this investigation,
the employer determined that the request did not fall within the
provisions of the Collective Agreement and it was on this basis
that Mr. Leaf's request was denied.
With respect to Ms. Kimmel, counsel pointed out that Mr. Jain
sought answers to a number of relevant questions, including past
practice. Mr. Jain wanted to know what was special about Ms.
Kimmel's request, and after going through the checklist (reproduced
above), he determined that her request was not special, and it was
on this basis that it was denied.
In both the Leaf and Kimmel cases, counsel argued, the employer
properly considered appropriate factors, reasonably applied them
and made its decision on that basis. Accordingly, there was no
reason for the Board to interfere in the employer's exercise of
.
41
discretion. The employer was acting reasonably and without
discrimination, and made its decision on the basis of its
conclusion with respect to the merits of each request. Counsel
drew the Board's attention to the Youncr 220/79 (Swinton) decision..
In this case the Board held:
An arbitration board, in subsequently assessing what the
employer has done in reaching its decision, then plays
a restricted role. It must decide whether the employer
has acted reasonably and without discrimination and has
turned its mind to the merits of the particular request.
If satisfied that these criteria.have been met, the Board
must deny the grievance, even if it disagrees with the
result reached by the employer or if it might have
reached a decision other than that reached by the
employer. The Board's concern is the reasonableness of
the decision, not its llcorrectness" in the Board's view.
Such an approach is the proper one to adopt in situations
such as leave of absence cases, where. the collective
agreement gives the employer a broad discretion and where
the Board has less familiarity than has the employer with
the needs of the workplace (at 6) (emphasis not ours).
Counsel argued that when this standard of review was brought to
bear on the facts of the instant case, there was no basis for the
Board to interfere witii the employer's decision.
Counsel did point out that the inclusion of Article A in the
Collective Agreement made the matter somewhat more complex in that
it enumerated additional considerations to be taken into account
in assessing the exercise of discretion. In addition to the
criteria set out in Kuvnties, the Board must also determine whether
or not the denial of the request was discriminatory within the
meaning of Article A. Counsel submitted that this Article had not
been infringed.
42
*'
Turning to union counsel's arguments with respect to adverse and
direct discrimination, employer counsel argued that neither had
been established in the instant case. In counsel's submission,
the application of Article 55.1 in the instant case cannot be said
to constitute direct discrimination. The intent of this provision,
in counsel's submission, is to provide paid leave for individuals
in unexpected non-recurring situations. Moreover, in counsel's
view, the fact that Article 55.1 is not normally used for leaves
of religious,nature cannot be said to adversely effect the grievors
because.the grievors were entitled to arrange leave without pay.
In .the case that the Board did find an adverse impact, counsel
argued that the employer had met the test of reasonable
accommodation by allowing the grievors to take the requested leave
without pay, or as vacation days. In this regard, counsel drew the
Board's attention to Re Stelco Wire Products Co 25 L.A.C. (3d) 421
(Brent). In this case, a Seventh Day Adventist was discharged for
not working on Fridays. The Board ordered him reinstated. It did
not, however, order an accommodation. Instead, it ordered the
employer to try to find some job which did not involve interference
with the grievor's religious beliefs. Moreover, it required the
grievor to be "flexible" and to make "reasonable sacrifices in
order to return to employment of some kind with the company" (at
143). If flexibility and sacrifice failed, the grievor was to be
laid off.
. 43
Counsel also dr'ew the Board's attention to Re Civil Service
Commission and Nova Scotia Government Emolovees Union i' L.A.C.
(4th) 257 (Outhouse). In this case, the Collective Agreement
contained a non-discrimination clause not dissimilar to the one in
issue in the instant case. The Collective Agreement also provided
for various paid holidays including Christmas, Good Friday and
Easter Monday. Moreover, there was a special paid leave provision
in the Collective Agreement. The similarity in facts to the
instant case merits a detailed review of this decision.
As in the instant case, the grievor was Jewish and in 1988 he
applied for paid leave to attend Rosh Hashonna and Yom Kippur. In
previous years, he had taken lieu or vacation days to coincide with
the High Holidays:
In 1988, the grievor made a conscious decision that,
rather than taking Yom Kippur and Rosh Hashanna as
vacation days or lieu days as. he had in the past, he
would request that they be granted to him as special
leave with pay under art. 19.01. His reason for doing
so, simply stated, was because certain Christian holidays
- to wit, Christmas and Good Friday - were recognised in
the collective agreement as paid holidays and he firmly
believed that Jewish religious holidays should be
accorded equal treatment. In other words, just as
Christians were not required to sacrifice.vacation. or
lieu days in order to observe Christmas or Good Friday,
the grievor felt that he should not be required to do so
in order to observe Yom Kippur and Rosh Hashanna (at 258-
59).
Suffice it to say that the employer did not share the grievor's
point of view. His request was denied and a grievance proceeded
to arbitration.
44
The arguments in the Nova Scotia case resemble those made in the
instant case, in particular the arguments with respect to adverse
impact discrimination. Other arguments were made with respect to
the effect of the Nova Scotia Human Riahts Act on the.Collective
Agreement. "In summary, the union submits that the contractual
recognition of Christmas and Good Friday as paid 'holidays
constitutes adverse effect discrimination against non-Christians
thereby giving rise,to a duty on the employer to make reasonable I
accommodation for those employees, like the grievor, who are
practising members of other religious faiths. The obvious vehicle
for making such accommodation was available, so the union says,
under [the special leave provision of the collective.agreement],
but the employer refused to avail itself of same and thereby
violated the. provisions of both the collective agreement and the
Human Riahts Act" (at 262-263).
The employer took the position that the Collective Agreement had
not been infringed and questioned the authority of the arbitrator
to apply the Human Rights Act. Employer counsel argued that in
denying the request there was no evidence of intentional
discriminatory activity and that absent such evidence it could not
be said that the employer had improperly fettered its discretion.
Employer counsel also urged Arbitrator Outhouse not‘to rewrite the
collective agreement so as to find that employees were entitled to
special leave with pay for bona fide religious reasons, for to do
so would be to override managerial discretion.
45
It would also result, the employer argues, in reverse
discrimination because the grievor would ultimately wind
up being paid for three more holidays than would
Christian employees.. .To the extent that the bargain is
now perceived by the union to be deficient...the proper
way to address such deficiency is through collective
bargaining and not the grievance/adjudication process (at
265).
After carefully considering the arguments of the parties,
Arbitrator Outhouse dismissed the grievance. .In brief, he found
that the Collective Agreement did not discriminate against non-
Christians through its recognition of Christmas and Good Friday as
paid holidays. It was "debatable" to Arbitrator Outhouse whether
or not Christmas and Good Friday could be fairly characterized, for
employment-related purposes, as religious holidays. The connection
between these holidays and religion was, he found, more
91historicalB1 than anything else (at 266). l*Alternatively, if, as
the union argues, 'adverse effect' discrimination arises by virtue
of such recognition, then I am satisfied that the employer has met
its obligation to reasonably accommodate the grievor's religious
beliefs" (at 265):
. . . I am satisfied, on balance, that the employer has
reasonably accommodated the grievor's right to practise
his religion free from any substantial constraint or
disadvantage. As the record shows, the employer has
never attempted to prevent the grievor from observing Yom
Kippur or Rosh Hashannah. On the contrary, it has always
granted his requests for annual leave or lieu time on
high holidays and, as well, is prepared to give him the
option of taking special leave without pay. In my
judgment, the aforementioned measures, taken in
combination, constitute reasonable accommodation on the
part of the employer. At worst, the grievor is put in
the position where, in order to observe Jewish high
holidays without any consequent loss of pay, he is
required to 'utilize a small portion of his annual
vacation time or lieu time.
This can hardly be considered to impose an undue hardship on the grievor,
46
particularly in light of the fact that~, by his own
admission, he builds up lieu time by working longer hours
in preparation for his planned absence from work on high
holidays. While it is not by any means clear from the
evidence that the lieu time thus accumulated would be
sufficient to cover a full eight-hour shift, it would
certainly tend to minimize any possible disadvantage
which the grievor might otherwise be thought to suffer.
The conclusion that the employer has met. the duty of
reasonable accommodation is reinforced by reflecting upon
the result that would follow from ordering the employer,
as the union would have me do, to grant the grievor
special leave with pay on Jewish high holidays. Such an
order would mean~that the grievor would, in effect, enjoy
three more paid holidays than .other members of the
bargaining unit . ..Regardless of how one looks at it,
therefore, the grievor would, if granted special leave
with pay on high holidays, receive greater benefits under
the collective agreement as a direct result of his
religious beliefs than would other employees. That being
so: claims of reverse discrimination would be bound to
arise and, quite frankly, would be hard to resist...Such
a state of affairs would, to say the least, be highly
undesirable and supports the conclusion that the duty of
reasonable accommodation in the present case, if it
exists at all, stops short of obliging the employer to grant the grievor special leave with pay (at 267-268).
Applying this case to the instant one, employer counsel argued.that
the accommodation soughr in the instant case was a matter for
collective bargaining, not for arbitration.
In summary, employer counsel took the position that there had been
no discrimination, either adverse or direct, and that management
had acted properly in the exercise of its discretion under Article
55.1. In the event that the Board found adverse impact
discrimination, counsel argued that in offering the grievors unpaid
leave or 'vacation pay the employer had met its accommodation
obligations. Counsel argued that if the Board interpreted Article
47
A and Article 55;.1 as requiring mandatory paid:leave for religious
holidays, that would constitute amendment of the Collective
Agreement and would, in law, be an excess of jurisdiction. Article
55.1 clearly contemplated that the employer exercise discretion
whether or not to grantpaid leave, and counsel urged the Board not
to impose any additional fetters on that~discretion.
Union Reuly
In counsel's submission, nothing in the employer's argument
indicated that the refusal to grant the grievers' special leave
with pay was anything other than the application of a rigid pre-
determined policy not to grant special leave for religious
holidays. On this basis alone, counsel argued, both grievances
should be upheld. It was noteworthy; in this respect, that counsel
for the employer was not able to give a single example of when
special leave for religious observance would be given.
Counsel reiterated his earlier argument that Article A was in the
Collective Agreement for a reason, and he urged the Board to give
effect to that reason. One of the results of doing so would be,
in a case of this kind, to condition the exercise of management's
discretion, and counsel argued that there was nothing wrong with
that.
With respect to the employer's submission that in the event that
the Board found adverse impact discrimination, the employer had
48
met its accommodation obligations, counsel argued that there was
no evidence of hardship, much less undue hardship in the meeting
of those obligations. The only hardship in this case was that
suffered by the grievors. Moreover, there was no attempt to work
' out alternative arrangements with the grievors. With respect to
the Nova Scotia decision relied on by the employer, union counsel
noted that it was riddled with gaps and mistakes and permeated by
a fear, which in fact is articulated in the award itself', of the
consequences of upholding the grievance. Union counsel urged the
Board to ignore that award.
Decision
Having carefully considered the evidence and arguments of the
parties we have come to the conclusion that these grievances must
be allowed. In brief, we find a violation of both Article 55.1 land
Article A of the Collective Agreement. In particular, we find that
1 "Given the nearly universal recognition of Christmas and
Good Friday as paid holidays, both in this province and in the
country as a whole, it is patently obvious that a ruling upholding
the union's position would, to say the least, have very widespread ramifications for both employers and unions. Consequently, it is
imperative that the issue be considered in its broader context and
not on a fine reading of the collective agreement" (at 266). "What
the union is essentially asking me to do in the present case is to
find that the material portions of the Labour Standards Code and
the Canada Labour Code are prima facie discriminatory because, like
the collective agreement between the parties, they recognises
Christmas and Good Friday as paid holidays. Unless and until a
court so rules, I am not prepared to make that finding, nor am I
prepared to conclude that a collective agreement, such as the one
under consideration here, is discriminatory merely because it
incorporates the same paid holidays as are recognised by statute"
(at 267).
i .
49
the decision not'to grant special leave to both Mr. Leaf and Ms.
Kimmel constitutes adverse impact discrimination giving rise to an
accommodation obligation on the part of the employer to the point
of undue hardship. We find that this obligation was not
discharged. We find, moreover, that the decision not to grant
special leave constitutes direct discrimination against both
grievors and must, in that result, be set aside. And we find,
finally, that the employer failed to properly exercise its
discretion according to the standards long established by this
Board. Each of these findings, which will be discussed in turn,
constitute,independent grounds for upholding both grievances.
The facts of this case are relatively straightforward. This
ministry has a rule that special leave with pay is not %ormally8~
granted for religious holidays. This policy is articulated in the
virtually identical letters to each grievor denying their requests,
and appears from the evidence to be consistent with the employer's
policy generally. This rule is neutral on its face in the sense
that it applies to everyone who works at the ministry. It is not,
however, neutral in its application.
In the instant case, both grievors, who are observant Jews, applied
for special leave to celebrate important religious events. As
members of a minority religious group, the grievor's have a special
need to obtain special leave. This is not a case of an employee
‘_
50
seeking special' leave for a frivolous nonrsectarian purpose:
rather, the leave was sought for religious reasons. Nevertheless,
both applications were denied, and in both cases the grievors were
advised that they could either take the days off without pay, or
use their vacation credits. Either of these options involved the ~-
grievors choosing between attending work and making money and
~celebrating a holy day of their religious faith. Counsel for the
employer argued that in presenting these options to the grievors~
the employer discharged its duty to accommodate. With respect, we
disagree.
We find that the rule in question had an adverse impact on the
grievors because they were members of a minority group. The result
of the rule was to discriminate against them on the basis of creed,
one' of the prohibited grounds in Article A of the Collective
Agreement, by making them choose between a days wages and the
celebration of one of their holy days. As a result of this adverse
impact discrimination, a duty to accommodate to the point of undue
hardship arose.' In Gohm v. Domtar Inc. 12 C.H.H.R. 161 (Pentney)
the Board of Inquiry made the following observations with respect
to the duty to accommodate, albeit in the context of a Ontario
Human Rights Code complaint:
I find that the duty to accommodate short' of undue
hardship imposes -a duty on employers...to take
substantial or meaningful steps to accommodate the
requirements of the complainant. This duty defies
generalization, because each case will involve unique
circumstances, but as a general matter I find that the
law requires more than a de minimus effort or expenditure
on the part of the respondent. As counsel for the
51
Commission*pointed out, the very term "undue" hardship
itself indicates that there is some hardship that is
"due," and it is only hardship that goes beyond this
minimum that can be relied upon by a respondent as a
defence. It would be inconsistent with the purpose of
human rights laws to prohibit adverse impact
discrimination and at the same time to interpret the
defence of reasonable accommodation short of undue
hardship in such a manner that virtually any desultory
effort to meet the complainants' needs, or any minimal
expense, would be sufficient to justify the challenged
rule or practice (at paragraph 96).
The evidence indicates that the duty was not met in the instant
case. Offering the grievors their pre-existing entitlement does
not constitute an accommodation. In our view, as in Simvson-Sears,
the employer has an obligation, once adverse impact discrimination
is established, to demonstrate that it has attempted accommodation
up to the point of undue hardship. In the instant case it could
perhaps be argued that the employer made some accommodation efforts
in the sense that it offered the grievors the option of taking the
days off without pay, or taking holidays on the days in question.
This, however, is not an accommodation, for the result of this
"accommodationt' is discriminatory to the grievors and any
accommodation must be directed at , the elimination of
discrimination. It is also noteworthy that the employer made no
effort whatsoever in either case to explore alternative
accommodation arrangements.
It hasbeen long established that arbitrators may use legislative
enactments, such as the Ontario Human Rights Code, to assist in the
construction of collective agreements (McLeod v. Eoan (1974) 46
52
D.L.R. (3d) 150). In the instant case, there is no issue of
conflict between a statute and the collective agreement. Article
A does not, however, contain any express duty to accommodate to the
point of undue hardship such as that found in section lO(2) of the
Code -- Nevertheless, such a duty can and must be inferred in this
case in the same way that it has been inferred by the Supreme Court
of Canada in other cases such as Alberta Human Rights Commission
v. Cental Alberta Diarv Pool (1990) 72 D.L.R. (4th) 417. Not only
is it the law of the land, but absent such a duty what would be‘the
point of Article A? One can assume that this provision was
intended to mean something, and the only way it can mean much is
if the prohibition on discrimination carries with it a remedy when
such discrimination has been established. In this regard, the
mHuman setting out the law and public policy
in Ontario provides an important aid to the interpretation of
Article A (see also the Preamble to the Q&).
In the same way Canadian courts have repeatedly sanctioned a
purposive approach to discrimination that broadly interprets human
rights laws so as to eliminate discrimination and provide
meaningful relief, Article A of the Collective Agreement should
also be interpreted. In reaching this conclusion we are merely
giving effect to the agreement reached by the parties. In the
instant case it is not necessary to make any findings with respect
to our jurisdiction to enforce anything other than the terms and
conditions of the Collective Agreement.
? ,
53
Counsel for the employer argued that the employer had discharged
its duty of "reasonable accommodation." With respect, that is an
incorrect characterization of the obligation. The duty, once
adverse impact has have been established, is to accommodate to the
point of undue hardship. In our view, the employer was required
to explore and then offer an accomodation to each of the grievors.
Put another way, the initial obligation to accommodate rests on the
employer. Had the employer made a real effort to accommodate'to
the point of undue hardship, then our disposition of the grievances
would almost certainly have been different. Once the employer
makes its offer of accommodation, again to the point of un'due
hardship, the employee has'an obligation to respond to the offer
and to be reasonable in his or her response. In the instant case,
the parties never~reached that point.
This duty to accomodate to the point of undue hardship~was not met
in this case, and it is on this basis that we find a violation of
Article A and Article 55.1 of the Collective Agreement. The concept
of "undue hardship" requires some sacrifice on the part of the
employer, not as Arbitrator Outhouse suggests, on the part of an
employee.. The employee's obligation is to respond reasonably and
in good faith to a real offer of accomodation, but that, of course,
presupposes the pre-existence of such an offer. We find that there
was no such offer in the instant case. In this regard, we reject
as erroneous the reasoning and analysis in the Nova Scotia case.
8i
:
54
Superficially, it bears some resemblance to the instant case, but
upon careful examination it serves no useful purpose at all. The
Fasan case can also be distinguished from the instant one. It was
decided long'before Article A entered the Collective Agreement.
II. Direct Discrimination
The employer in the instant case has a policy that special leave
is not normally available for religious observance. In our view,
there is nothing wrong with an employer establishing a general
policy governing its interpretation and application of the
Collective Agreement. Obvious benefits of a general policy include
certainty and consistency. However, the effect of the policy in
the instant case is to exclude members of ninoritarian religious
faiths from obtaining special leave for the celebration of their
important holy days. Although the policy in the instant case
indicates that "normallytt special leave will not be given for
religious holidays, it appears from the ev~idence that '~normally",
in fact, means '*never," at least in the case of annually recurring
religious events.
TO "never" grant special leave for religious purposes is to
discriminate against members of minoritarian religions. The
evolution of the employer's policy indicates a decision by this
employer not to provide special leave for members of minoritarian
faiths for the purposes of celebrating recurring religious events.
While not crass, this is direct discrimination nevertheless.
It
55
=,
Accordingly, the policy is in conflict with. Article A of the .'
Collective Agreement and we declare it to be og no effect.
III. Imnroner Exercise of Discre,tion
The intent of Article 55.1 is to provide employees with up to three
days with pay, in the discretion of the employer, for special
reasons. This provision of the Collective Agreement does not
circumscribe what those special reasons are. Obviously, what is
special is a matter to be determined in each case, and it is hardly
appropriate for the employer to determine in adv,ance that a certain
class of events, religious holidays in the instant case, are not
special. To make that determination in advance is to fail to
properly exercise the discretion conferred by Article 55.1. As
found in Kuvnties, the exercise of the discretion must be,real, and
that means it cannot be the result of rigid policy adherence, as
was apparently what took place in the instant case. Moreover,
since the advent of Article A in the Collective Agreement, the
discretion must be exercised with that provision kept in mind.
Additional Reasons for Decision
Some additional reasons for decision, all of which go directly to
the result, are in order supporting the three findings we have
reached.
The duty to accommodate gives recognition to the fact that everyone
is not the same and that sometimes, in order to treat people
equally, it is necessary to treat them differently. (R. v. Bis M
15
56
Druo Mart, [1985] 1 S.C.R. 295) These religious holiday cases
illustrate this point. All Canadians do not celebrate Christmas
and Easter. Yet for historic and demographic reasons these major
events of the Christian faith have been given statutory recognition
with the result that many, but not all, Christians can, if they
wish, celebrate these holy days without financial loss. Other
Canadians, Jews, Moslems, Buddhists, Eastern Rite, etc., are not
given this same benefit. To be sure, they enjoy Christmas and
Easter as statutory holidays. What they do not enjoy is the
benefit of paid leave to attend to their own religious observance.
The employer's policy in the instant case formally applies to all
employees. Carefully examined, however, it has a discriminatory
effect on 'employees who do not celebrate Christmas and Easter or
who celebrate these holy days according to the Eastern Rite. It
has a discriminatory effect on these employees because it imposes
financial consequences on them for the celebration of their
important religious events. This can hardly be said~to give effect
to the Collective Agreement right to freedom from religious -
discrimination, not to mention the Charter of Rights and Freedoms
and the Ontario Human Rishts Code.
When presented with a'case of this kind the employer is not only
required to investigate the request but to actively consider and
discuss accommodation options. We find the investigative process
in this case, while free of bias and overt discrimination, was
nevertheless deficient in that it focused too narrowly on either
/.
?
57
granting or rejecting the grievers' specific requests. In the case
of Mr. Leaf, the employer focused on why his,,observance was
"special" or Vnusua18U; while in the case of Ms. Kimmel there was
no effort made to discuss the request and accommodation. At the
very least, Ms. Kimmel should have been asked why the requested
leave was '*special@' to her. We find that the questions and
criteria considered by the employer in assessing Ms. Kimmel's
request provide a useful.way to go about exercising discretion with
respect to Article 55.1. It is ,beyond us, however, how these
questions and criteria could be considered in a vacuum. At the
very least, a discussion with the grievor is necessary in order to
determine what the grievor considers to be "special" about the
event for which leave is requested.
It simply does not make sense for the ministry to say that it is
accommodating these employees by giving them the option of taking
vacation pay or leave without pay, when it gives that same option
to all employees including those who have no need to take advantage
of it for the purposes of religious observance. The employee who
seeks and obtains special leave to attend to religious duties is
not in an advantaged position relative to other employees. If
anything the opposite is true because 'once that employee has
extinguished his or her special leave with pay, it is no longer
.available'for other purposes. The grievors in the instant case,
for example, if accommodated, would get the Christian statutory
holidays as well as their own religious holidays. Arbitrator
58 .
Outhouse described this as "reverse discrimination.'! But to
conceptualise accommodation in this way is to miss the point.
Other employees without religious obligations necessitating absence
from work continue to have the special leave provision available
to them.
The duty'to accommodate simply cannot be seen as a matter of
preferences for certain individuals and groups, It must be seen as
a remedial measure directed at removing discrimination against
these individuals and groups. Preferred parking places for
handicapped person or light duties for injured workers are two
examples that illustrate this point.
One relevant limitation on the duty to accommodate is cost, and on
the evidence before us the employer never considered its potential
financial liability in accommodating these grievors in the same way
that it never considered alternative accommodations. It should be
pointed out that our remedial order in the instant case is to
enf,orce a provision of the Collective Agreement, one that was
presumably "costed" by the employer in collective bargaining.
Another potential limitation' on the duty to accommodate are
operational requirements. The evidence indicated that there were
no operational requirements requiring the presence of these
employees on these days. Indeed, the fact that the employer
suggested unpaid leave or vacation days indicates the absence of
59 .
any 0perational"requirements.
One final 'issue must be addressed. We are quite disturbed by the
t lack of uniformity in practice of the different ministries with
respect to granting special leave. The evidence on this point need
not be extensively reviewed. Suffice it to say that one government
ministry, the Ministry of Labour, has an elaborate and
sophisticated policy to deal with requests for special leave to
attend religious events. The ministry in the .instant case
routinely denies such requests and states that is not bound by what
goes on at the Ministry of Labour. In our view,, what goes in one
government department may be relevant in assessing the
reasonableness of actions taken in another.
The fact that two government departments should have such
materially different policies on as important an issue as the one
raised ,-in the instant case, potentially affecting thousands of
government employees, is, in a word, intolerable. Whether or not
an employee receives special leave to attend to religious
obligations should not depend on whether he or she works in the
Ministry of Labour or in the Ministry of Government Services. It
is the same employer in either case and common sense, not to
mention sound industrial relations practices, demands that the
implementation and interpretation of the special leave provisions
of the collective agreement be reasonably consistent.
$
5
60
Remedy . . . :
Having found a violation of the collective agreement, we must now
turn our attention to the appropriate remedy for this violation.
We are of the view that the employer in the instant case was under
an obligation to accommodate both grievors to the point of undue
hardship. In the instant case, such an accommodation need do no
violence to the bargain reached by the parties, for Article 55.1
of the Collective Agreement sets out the accommodation requested.
Accordingly, we order that the grievors be compensated for the
requested special leave according to Article 55.1. In making.this
award we are not, however, suggesting that this was the only
accomodation available in this case. It is, however, one logical
accomodation, and it also has the benefit of being consistent with
the Collective Agreement. It is not necessary, at this time, to
make any findings with respect to the Board's authority, if any,
to direct accommodations which may go beyond the scope of the
Collective Agreement. We grant this same remedy with respect to
our findings of directdiscrimination and improper exercise of
discretion.
l , 61
In the result, both grievances are upheld and the employer% directed to
credit both grievors’k two days of vacation pay. We rem&n seized with
respect to the implementation of this award.
Dated at Ottawa this 7th day of October 1991.
William Kaplan
i- ’
/
‘G, Klym
Member
cdba
C. Linton.
Member