Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2014 November 12, 2014 | Canadian Employment Law Today discretion of the employer. e adjudicator also noted that Andres made his formal request for accommodation three days before Orthodox Good Friday, which was less than the collective agree- ment's stipulation of four weeks in advance. His first request — made in early April — simply asked for vacation time for the Ortho- dox holidays. By the time Andres requested that he not have to use vacation time on April 14, the designated holidays of Western Good Friday and Easter Monday had already passed, so it wasn't possible for him to work those days instead. In addition, there was no record of Andres making a formal request for that option, said the adjudicator. ough Andres argued the CRA didn't engage in a proper process of accommoda- tion by having a conversation about it, the adjudicator disagreed. e collective agree- ment laid out the process, which should be a "multi-party inquiry involving the employ- er, the union and the employee." However, the lateness of Andres' request didn't give the CRA a chance to consider accommoda- tion options, as he hadn't initially indicated he wanted accommodation for the religious holidays, said the adjudicator. "(Andres) has suggested that the em- ployer, (himself ) and the bargaining agent certainly could have entered into an agree- ment whereby (Andres) worked the des- ignated paid holidays of Western Good Friday and Easter Monday 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, im- plemented," said the adjudicator. e adjudicator noted that the Supreme Court of Canada had ruled that an employ- ee needing accommodation was not neces- sarily entitled to "perfect accommodation" — accommodation to the exact terms de- sired. As long as the employee was given reasonable accommodation options, the duty to accommodate could be fulfilled. In this case, the CRA, through the collective agreement, offered several options to ac- commodate the need to have time off for religious holidays not covered by the desig- nated paid holidays. If none of the options were possible for Andres, the onus would be on him to show why, said the arbitrator. e adjudicator determined the accom- modation options in the collective agree- ment were reasonable and Andres chose not to take any of them. Given the lack of notice before he made his request and his insistence on doing exactly what he wanted to do, Andres failed his part of the accom- modation process, said the adjudicator. "While I agree with (Andres) that there needs to be a process, that process starts with (him)," said the adjudicator. "If the employer does not know that (Andres) needs or is seeking an accommodation, it cannot very well respond to it." For more information see: • Andres v. Canada Revenue Agency, 2014 CarswellNat 3861 (Can. Public Service Lab. Rel. Bd.). About the Author JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information. cRedit: cReativa imageS/ShutteRStock

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