Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2014 Worker's holdout for 'perfect' accommodation fails Employee's refusal of accommodation options not a failure of employer to accommodate: Adjudicator By JEffREy R. SMiTh A n employee of a federal agency did not live up to his part of the accommodation process when he wasn't allowed to take religious holi- days, an adjudicator has ruled. Anton Paul Andres was an auditor for the Canada Revenue Agency (CRA) at its tax services offi ce in London, Ont., since 1992. Andres was an Orthodox Chris- tian, which recognized certain holy days according to a diff erent calendar. As a re- sult, holidays such as Easter and Christ- mas usually fell on diff erent dates than those celebrated by Western Christians. In 2009, Good Friday and Easter Mon- day, fell on April 17 and April 20, respec- tively – one week later than the Western Christian dates, which were defi ned as paid holidays for CRA employees under the collective agreement. e collective agreement also had a clause requiring the CRA to "make ev- ery reasonable eff ort to accommodate an employee who requests time off to fulfi ll his religious obligations." Employees had the option of requesting unpaid leave, vacation leave or making 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 for religious holidays In early April 2010, Andres requested va- cation leave for Orthodox Good Friday and Easter Monday, which was approved. On April 14, he asked for the time off as paid holidays. Andres noted the collec- tive agreement's provision for unpaid leave, but also pointed out another clause that stated there should be no discrimi- nation for religious affi liation. As a result, Andres requested he be granted paid leave rather than use vacation days. e request was denied and Andres indicated he would take the days as va- cation leave as previously approved. In the past, Andres had taken the days off and made up the time, but he now had a family and it was easier to use vacation leave. However, he now felt it wasn't fair that those who celebrated Western Eas- ter didn't have to use vacation time to get the days off . Andres met with his team leader, who off ered him all the options outlined in the collective agreement. However, he said he wasn't interested in taking the days off with pay and making up the time. He thought he could work on the regular Good Friday and Easter Monday holidays, but the offi ce wasn't open on those days and the collective agreement required the payment of a premium to employees who worked on designated paid holidays. Andres also said he could work from home, but the CRA didn't encourage this because there were safety and security is- sues due to Andres' work involving pri- vate and sensitive taxpayer information. ough Andres had worked from home in the past, he hadn't done so in the pre- vious six months as the CRA kept a tight- er grip on its data. Andres fi led a complaint with the Canada Public Service Labour Relations Board, claiming he was the victim of ad- verse discrimination under the Canadian Human Rights Act, as well as the col- lective agreement's anti-discrimination clause. He said the CRA fi aled to "engage in a meaningful discussion" about accom- modating his request and there was no reason provided to him as to why accom- modation could not be made. Andres ar- gued he should have been allowed to take the Orthodox holidays as paid holidays rather than having to use vacation days and allowing him to work on the regular Good Friday and Easter Monday holidays would have been "a simple and direct way" to accommodate him without hav- ing him go over the established number of designated paid holidays all employees received under the collective agreement. e CRA argued it made eff orts to ac- commodate Andres by off ering him the various options available under the col- lective agreement. However, Andres re- fused those options and only wanted to take the days as paid holidays. It was not required to accommodate to the point of undue hardship "if undue hardship is not necessary to achieve accommodation," said the CRA. Collective agreement set out options for accommodation e adjudicator acknowledged that there was no dispute there was a requirement for the CRA to accommodate Andres on religious grounds and the collective agreement contained provisions to ad- dress such accommodation. e adjudi- cator found that the CRA complied with the wording of the collective agreement, which "provided for a menu of options as to how religious obligations could be accommodated." e provision — which was agreed upon by both the CRA and the union as part of their collective bar- gaining — included annual leave, com- pensatory leave, leave without pay, and time off with pay made up by the em- ployee later. e latter option was at the The employee wasn't interested in taking the days off with pay and making up the time later. case in Point: ACCOMMODATION THE DUTY TO accommodate is a fundamental principle in employment law. It's a legal duty placed upon employers in order to protect the human rights of employees who may otherwise be subject to discrimination under a ground protected by human rights laws that could prevent them from making a living. But the duty isn't just on employers. The accommodation process is a two-way street: Employers must make reasonable efforts to accommodate an employee with a disability or protected characteristics, but employees must participate in the process. From making a formal request and informing the employee of the need for accommodation to providing necessary information, accommodation can only go as far as the employee takes it. And that also means the employee must accept any reasonable accommodation options, not just what she prefers. BACKGROUND

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