Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends/Ask an Expert e question of sincere belief determines right to accommodation for which she seeks accommodation is an essential component of her personal obser- vance of faith, the practice is protected and a claim for accommodation is justified under human rights legislation. e difficulties faced by employers in such cases were outlined in 407 ETR Concession Co. v. CAW-Canada, Local 414. In that case, the employees were members of Pentecos- tal churches. ey refused to submit to bio- metric scanning for identification purposes based on their religious beliefs. ey were terminated when no accommodation could be reached. eir churches regarded the is- sue as a matter of individual conscience and did not purport to regulate their adherents' submission to scanning in any way. In the course of his decision allowing the grievance, the arbitrator criticized the majority decision in Amselem for its over- emphasis on the purely individual nature of religious belief. It allowed for an almost unlimited range of individual extrapola- tion on core religious beliefs and required employers to assume the substantial bur- den of accommodating employees without any corresponding right to claim objective proof of the characteristics giving rise to the right. He pointed out that religion and creed as grounds of discrimination were unique in this respect. Had the reasons of the minority prevailed in Amselem, the employees would not have succeeded as they could not show a reason- able belief that the practice was dependent on an established precept and was mandato- ry. e arbitrator regarded this result as more appropriate to a labour relations context. e decision in Loblaws Supermarkets Ltd. and UFCW, Local 1000A (Ferrentone), Re, is an example of a successful defence to a discrimination claim based on its lack of sin- cerity. In this case, the employer rejected the employee's request for Sundays off when he failed to demonstrate that he was either pro- hibited from working by his Roman Catholic religion or that he required the day off to en- gage in church or charitable activities. Evi- dence presented at the hearing showed that the employee's attendance at Sunday mass was sporadic and that he spent Sundays en- gaged in a number of secular activities. e arbitrator agreed with the employer that the employee's conduct was inconsistent with a sincerely held belief that his faith required him to have Sundays off for religious pur- poses and concluded that the employee's request was based on a lifestyle choice rather than a sincerely held religious belief. As the law currently stands, an employer's response to unfamiliar manifestations of re- ligion or creed may be limited to questioning the sincerity of those beliefs if the facts allow. ere are obvious risks in assuming that a request for accommodation is spurious sim- ply because a faith- or creed-based claim appears novel, unprecedented or unreason- able. Unless there is reason to doubt the em- ployee's sincerity or good faith, an employer would be well-advised to treat the request as valid and seek the information it needs to assess whether the employee's beliefs can be accommodated, keeping in mind that the search for an accommodation requires all af- fected parties to act reasonably. For more information see: •I.B.E.W., Local 424 v. Stuve Electric Ltd., [1989] Alta. L.R.B.R. 69 (Alta. Lab. Rel. Bd.). •Simpe 'Q' Care Inc. v. H.E.U., 2006 Car- swellBC 2942 (B.C. Lab. Rel. Bd.). •RMH Teleservices International Inc. v. B.C.G.E.U., 2005 CarswellBC 1933 (B.C. Lab. Rel. Bd.). •Syndicat Northcrest c. Amselem, 2004 Car- swellQue 1543 (S.C.C.). •407 ETR Concession Co. v. CAW-Canada, Local 414, 2007 CarswellOnt 422 (Ont. Arb.). •Loblaws Supermarkets Ltd. and UFCW, Local 1000A (ferrentone), Re, 2012 Car- swellOnt 10887 (Ont. Arb.). « from ASK AN EXPERT on page 2 and her friendship with a male co-worker was more than just a friendship. Other employees confirmed the com- plaints of the two women and the company decided to dismiss Stewart for harassment and mistreatment of female employees on Nov. 25. Some time later, Stewart wrote apologies to the women, saying he had been unprofessional and used "rude and obscene" language. He asked the co-ordinator to "ac- cept my forgiveness" and offered the other co-worker "sincere apologies if I offended you in any way." However, though Stewart said he regret- ted the Nov. 23 outburst, he denied any other harassment outside of that incident, saying coarse language, jokes and teasing were common at the Darlington nuclear station. He also explained that on Nov. 23 he was tired after working overtime, had a sore leg and was frustrated with waiting for instruc- tions. e union grieved the dismissal, argu- ing it was excessive and unnecessary. e arbitrator accepted the womens' ac- counts of what happened, as they had no reason to lie and they were backed up by other employees. He considered Stewart's version as minimizing his conduct and still attempting "to deny elements that seem ob- vious." e arbitrator also found Stewart's apol- ogy, coming weeks after his dismissal, to be "inadequate and likely prompted by his termination." He denied his misconduct un- til after he lost his job, when he realized he must apologize. However, the arbitrator also found Stew- art realized he had a tendency to say things that were offensive to others and he knew he needed to turn over a new leaf. In addi- tion, Black and McDonald didn't ask him for a response to any of the allegations in its investigation and thus failed to consider whether a lesser penalty would send the message that such behaviour was unac- ceptable. e arbitrator determined that Stewart deserved a chance to show he could change and be respectful to his female co- workers. Black and McDonald was ordered to reinstate Stewart at the next call for workers at Darlington with a disciplinary suspension on his record from Nov. 25, 2015, until his reinstatement, with no back pay. In addition, Stewart was to be subject to a last chance agreement that stipulated any further violation of the OPG code of conduct or Black and McDonald workplace violence and harassment policy would result in termination of employment. See Black & McDonald Ltd. and Ontario Provincial District Council (LIUNA, Local 183) (Stewart), Re, 2016 CarswellOnt 1672 (Ont. Arb.). Harasser only apologized after firing « from WORKPLACE on page 1 Practices based on a lifestyle choice rather than a sincerely held religious belief are not protected under human rights legislation The worker denied any other harassment, claiming course language and teasing were common

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