’Tis the Season to Be Flexible

Author: Riva Farrell Racette

As we round the corner into the holiday season, employers may find themselves considering numerous requests by employees for time away from the workplace. Depending on an employer’s operations, the volume of requests during the holiday season can be particularly challenging.

In handling such requests, employers should be careful to flag any that relate to protected characteristics under human rights legislation.

In the context of the holiday season, complaints of discrimination often involve the protected grounds of religion or creed. An Ontario arbitrator recently considered an employee’s request to take an unpaid day off for religious purposes in Central West Specialized Developmental Services v Ontario Public Service Employees Union, Local 249, 2018 CanLII 66465 (“Central West”).

The employer in that case operated a number of residential houses. As is typical, the employer had a substantial number of requests during the holiday season. However, it had to ensure a specific level of staffing to meet operational and regulatory requirements. The grievor submitted the required form, asking that he be given an unpaid day off on Christmas Day, December 25, for religious purposes.

The employer in Central West did not consult with the grievor and scheduled the grievor to work Christmas Day – based on its practice of prioritizing requests according to policy and seniority rules under the collective bargaining agreement. The employer eventually offered that the grievor could have Christmas Eve off and that he could take two hours during his Christmas Day shift to attend mass.

The arbitrator found that the employer did not satisfy its duty to accommodate, and that the employer’s accommodation was based upon what it thought would fulfil the requirements of the grievor’s faith – which it was not entitled to do.

According to the arbitrator, satisfying only a portion of the grievor’s religious beliefs in this manner without any evidence of undue hardship did not meet the duty to accommodate.

In Markovic v Autocom Manufacturing, 2008 HRTO 64, the Ontario Human Rights Tribunal rejected the argument that the duty to accommodate required that the employer provide the employee with a paid day off to observe the Eastern Orthodox Christmas on January 7, just like an employee would be paid for the “Western Christmas” on December 25.

According to the tribunal, by providing the employee with a “menu of options” that allowed the employee to make up the shift, without a loss of pay, the employer had fulfilled its duty to accommodate.

The duty to accommodate during the holiday season has also been considered by human rights tribunals in the context of workplace rules.

In Jones v CHE Pharmacy Inc., et al., 2001 BCHRT 1, the complainant, a 16-year employee, was of the Jehovah’s Witness faith and served as an elder in his congregation. The complainant’s faith did not recognize Christmas and prohibited against him decorating or participating in any activities related to the celebration of Christmas.

When instructed to decorate the store he worked in with poinsettias for Christmas, the complainant refused on the basis that his religious faith prevented him from doing so. The employee was given an ultimatum – either comply with the instruction or quit. The employee felt compelled to quit.

The Tribunal held that requiring the employee to decorate the store for Christmas was discriminatory and that employer could have reasonably accommodated the employee by getting someone else who did not have religious objections to decorate the store.

The underlying theme in all of these cases is that rigidity is best avoided and that flexibility is key.

What will satisfy the employer’s duty will always depend on the facts surrounding each request. However, the case law is clear that an employer needs to be careful to ensure that any accommodation provided is not based on the employer’s view of the reasonableness of an employee’s religious beliefs, or what the employer thinks should satisfy the requirements of an employee’s faith. In all instances, tribunals and arbitrators will expect an employer to show that it was open-minded and flexible in the search for reasonable accommodation.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.