Canadian HR Reporter

Canadian HR RepoRteR november 17, 2014 eMPLOYMeNT Law 5 Holdout for 'perfect' accommodation fails an employee of a federal agency did not live up to his part of the accommodation process when he requested time off for religious holidays, found an adjudicator. Anton Paul Andres was an auditor for the Canada Revenue Agency (CRA) in London, Ont. He had been with CRA since 1992. An- dres was an Orthodox Christian, which recognized certain holy days according to a different cal- endar. As a result, some holidays fell on different dates than those celebrated by Western Christians. In 2009, the Orthodox Good Friday and Easter Monday fell on April 17 and April 20, respectively — one week later than the West- ern Christian dates, which were defined as paid holidays for CRA employees under the collective agreement. e agreement also required the CRA to "make every reasonable effort to accommodate an employee who requests time off to fulfill his religious obligations." Employees could request un- paid leave, vacation leave or make up the hours if they needed to take time off for religious holidays, as long as they submitted the request at least four weeks ahead of time. Request for accommodation In early April 2010, Andres requested vacation leave for Orthodox Good Friday and Easter Monday, which was ap- proved. On April 14, he asked for the time off as paid holi- days, noting the collective agree- ment's provision for unpaid leave along with another clause stating there should be no discrimination for religious affiliation. As a result, Andres requested he be granted paid leave rather than vacation. e request was denied so An- dres indicated he would take the days as vacation leave, as previ- ously approved. In the past, he had taken the days off and made up the time, but with a family it was now more convenient for him to use vacation. However, he felt it wasn't fair that those who didn't celebrate Orthodox Easter didn't have to use vacation time to get the days off. Andres' team leader offered him the options outlined in the collective agreement. But Andres said he wasn't interested in taking the days off with pay or making up the time. He thought he could work on the regular Easter holi- days, but the office wasn't open on those days and he would have to be paid a premium. Andres also said he could work from home — as he had in the past — but the CRA cited safety and security issues due to Andres' private and sensitive work. Andres filed a complaint with the Canada Public Service Labour Relations Board, claiming adverse discrimination under the Canadi- an Human Rights Act and the col- lective agreement's anti-discrim- ination clause. He said the CRA failed to "engage in a meaningful discussion" about accommodat- ing his request and there was no reason provided to him as to why it could not be made. e CRA argued it made efforts to accommodate Andres by offer- ing various options and it was not required to accommodate to the point of undue hardship "if un- due hardship is not necessary to achieve accommodation." Adjudicator looks at dispute The adjudicator said the CRA complied with the wording of the collective agreement, which "pro- vided for a menu of options as to how religious obligations could be accommodated." The provision included annual leave, compensa- tory leave, leave without pay and time off with pay made up by the employee later. e latter option was at the employer's discretion. e adjudicator also noted that Andres made his formal request for accommodation three days be- fore the holiday — less than four weeks in advance. By the time Andres requested he not use vacation time on April 14, the designated holidays had already passed so it wasn't pos- sible for him to work those days instead. And there was no record of Andres making that formal re- quest, said the adjudicator. Though Andres argued the CRA didn't engage in a proper process of accommodation by having a conversation about it, the adjudicator disagreed. e late- ness of the request didn't give the CRA a chance to consider accom- modation options, as he hadn't initially indicated he wanted ac- commodation for the religious holidays, said the adjudicator. "(Andres) has suggested that the employer, (himself ) and the bargaining agent certainly could have entered into an agreement whereby (Andres) worked the designated paid holidays of West- ern Good Friday and Easter Mon- day for regular pay, not premium pay, and received Orthodox Good Friday and Easter Monday off with pay. In theory this is correct; however, there is no evidence that this discussion ever took place, let alone in a timely manner such that it could be considered or, if acceptable, implemented." e Supreme Court of Canada has ruled that an employee need- ing accommodation is not neces- sarily entitled to "perfect accom- modation" — accommodation to the exact terms desired, said the adjudicator. As long as he is given reasonable accommodation op- tions, the duty to accommodation could be fulfilled. In this case, the CRA offered several options and if none of these were possible for Andres, the onus would be on him to show why, said the arbitrator, adding the accommodation options in the collective agreement were reason- able and Andres chose not to take any of them. Given the lack of notice before he made his request and his in- sistence on doing exactly what he wanted to do, Andres failed his part of the accommodation pro- cess, said the adjudicator. "While I agree with (Andres) that there needs to be a process, that process starts with (Andres)," said the adjudicator. "If the em- ployer does not know that (he) needs or is seeking an accom- modation, it cannot very well re- spond to it." For more information see: • Andres v. Canada Revenue Agen- cy, 2014 CarswellNat 3861 (Can. Public Service Lab. Rel. Bd.). Jeffrey R. Smith is the editor of Cana- dian Employment Law Today, a pub- lication that looks at workplace law from a business perspective. For more information, visit www.employment- lawtoday.com. Jeffrey smith Legal View People are an organization's most important asset — it's more than a cliché, and that's something all HR professionals know. So why, when it comes to ensuring there is a reliable supply of leaders in the pipeline, do so many organizations fall fl at? The short answer: It's complicated. Todd Humber, managing editor of Canadian HR Reporter, is moderating a special roundtable discussion in partnership with the Industrial Relations Centre (IRC) at Queen's University on succession planning to fi nd out how employers can do it well, including how to nurture and retain high potential employees. Look for a special report in the Jan. 26, 2015, issue of Canadian HR Reporter. Canadian HR Reporter presents an exclusive roundtable on SPONSORED BY PANELISTS: • Lee Anderson, principal, Lee Anderson & Associates, London, Ont. • Lee Gonsalves, VP of HR, Calgary Co-operative Association, Calgary • Kate Humphries, senior manager, resource planning and succession management, TD, Toronto • Les Dakens, principal at Pineridge Consulting and former senior VP and CHRO, Maple Leaf Foods, Toronto • Paul Juniper, director of IRC at Queen's University, Kingston, Ont. • Betsy Smith, director of global HR, Umbra Succession planning

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