Canadian Labour Reporter

11 Canadian HR Reporter, a Thomson Reuters business 2015 ArbitrAtion AwArds CANADIAN LABOUR REPORTER different dates than those celebrated by West- ern Christians. In 2009, Good Friday and Easter Monday, fell on April 17 and April 20, respectively — one week later than the Western Christian dates, which were defined as paid holidays for CRA employees under the collective agreement. The collective agreement also had a clause requiring the CRA to "make every reasonable effort to accommodate an employee who re- quests time off to fulfill his religious obligations." Employees could request unpaid leave, vaca- tion leave or making up the hours if they needed to time off for religious holidays, as long as they made the request four weeks ahead. Request for accommodation for religious holidays In early April 2010, Andres requested vaca- tion leave for Orthodox Good Friday and Eas- ter Monday, which was approved. On April 14, he asked for the time off as paid holidays. Andres noted the collective agreement's provision for unpaid leave, but pointed out another clause that said there should be no discrimination for religious affiliation. So re- quested he be granted paid leave rather than use vacation days. The request was denied and Andres indi- cated he would take the days as vacation 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 Easter didn't have to use vacation time to get the days off. Andres met with his team leader, who of- fered him all the options outlined in the col- lective agreement. However, Andres 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 office wasn't open on those days and the collective agreement required the payment of a premium to employees who worked on des- ignated paid holidays. Andres also said he could work from home but the CRA didn't encourage this because of- safety and security issues with Andres' work involving private and sensitive taxpayer in- formation. Though Andres had worked from home in the past, he hadn't done so in the previous six months as the CRA kept a tighter grip on its data. Complaint filed with Canada Public Service Labour Relations Board Andres filed a complaint with the Canada Public Service Labour Relations Board, claim- ing he was the victim of adverse discrimina- tion under the Canadian Human Rights Act, as well as the collective agreement's anti-dis- crimination clause. He said the CRA failed to "engage in a meaningful discussion" about accommodat- ing his request and he was given no reason as to why accommodation could not be made. Andres argued he should have been al- lowed to take the Orthodox holidays as paid holidays rather than having to use vacation days and allowing him to work on the regu- lar Good Friday and Easter Monday holidays would have been "a simple and direct way" to accommodate him without having him go over the established number of designated paid holidays employees received under the collective agreement. The CRA argued it made efforts to accom- modate by offering him the options available under the collective agreement. However, An- dres refused those options and only wanted to take the days as paid holidays. It was not re- quired to accommodate to the point of undue hardship "if undue hardship is not necessary to achieve accommodation," said the CRA. Collective agreement set out range of options The adjudicator acknowledged there was no dispute there was a requirement for the CRA to accommodate Andres on religious grounds and the collective agreement contained pro- visions to address such accommodation. And the CRA complied with the wording of the collective agreement, which "provided for a menu of options as to how religious obliga- tions could be accommodated." The provision — which was agreed upon by both the CRA and the union as part of their collective bargaining — included annual leave, compensatory leave, leave without pay, and time off with pay made up by the employ- ee later. The latter option was at the discretion of the employer. The adjudicator also noted that Andres made his formal request for accommodation three days before Orthodox Good Friday, which was less than the collective agreement's stipulation of four weeks in advance. His first request — made in early April — simply asked for vacation time for the Orthodox 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 in- stead. In addition, there was no record of An- dres making a formal request for that option, said the adjudicator. Though Andres argued the CRA didn't engage in a proper process of accommoda- tion, the adjudicator disagreed. The collective agreement said there should be a "multi-party inquiry involving the employer, the union and the employee." However, the lateness of Andres' request didn't give the CRA a chance to consider ac- commodation options, as he hadn't initially indicated he wanted accommodation for the religious holidays. "(Andres) has suggested that the employ- er, (himself ) and the bargaining agent cer- tainly could have entered into an agreement whereby (Andres) worked the designated paid holidays of Western Good Friday and Easter Monday for regular pay, not premium pay, and received Orthodox Good Friday and Eas- ter 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, imple- mented," said the adjudicator. No need for 'perfect accommodation' The adjudicator noted that the Supreme Court of Canada had ruled that an employee needing accommodation was not necessarily entitled to "perfect accommodation" — accommoda- tion to the exact terms desired. As long as the employee was given reasonable accommoda- tion options, the duty to accommodate could be fulfilled. In this case, the CRA, through the collective agreement, offered several options to accom- modate the need to have time off for religious holidays not covered by the designated paid holidays. If none of the options were possible for An- dres, the onus would be on him to show why, said the arbitrator. The adjudicator determined the accom- modation options in the collective agreement 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 accommodation 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 seek- ing an accommodation, it cannot very well re- spond to it." reference: Anton Paul Andres and the Canada Revenue Agency. John G. Jaworski — adjudicator. Steve Eadie for the grievor, Sean Kelly for the employer. Sept. 19, 2014. from > page. 1 e lateness of Andres' request didn't give the CRA time to consider accommodation options, as he hadn't initially indicated he wanted accommodation for the holidays.

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