Canadian HR Reporter

CANADIAN HR REPORTER April 18, 2016 INSIGHT 19 Tim Mitchell Toughest HR Question New accreditation program 'insult to all who have come before' Would bypass vigorous, professional evaluation and allow in 100 per cent In the March 7, 2016, issue of Canadian HR Reporter, I was quoted in a story about the new accreditation program from the Canadian Council of Human Resources Associations (CCHRA) by- passing the National Knowledge Exam (NKE) to acquire the Certified Human Resources Professional (CHRP). I feel some additional comment is required. e idea of accrediting schools as a qualifier for professional desig- nations is not new — Ontario has required CHRP candidates to take approved courses for decades. But in Ontario, taking an approved course or program doesn't lead to any sort of exemption — it sim- ply allows someone to start the process of acquiring the "profes- sional" designation. If the goal of accreditation as an exemption is to simply increase association membership, this new program will likely work. Unfor- tunately, it is an insult to all who have come before and diminishes the quality of designation holders. Why? e current national pass rate for the NKE hovers around 60 per cent, according to results on the Human Resources Institute of Alberta's website. Rather than weeding out the 40 per cent of the candidates who fail, accreditation would bypass vigorous "profes- sional" evaluation and allow all 100 per cent in. It may be argued not all exam candidates have had HR-related education, and that skews the pass/fail rate, but this is not sup- ported by evidence. Ontario, with the highest academic standards, has historically had the lowest pass rate. This may seem counter-in- tuitive, but the NKE (now the Comprehensive Knowledge Exam or CKE1 in Ontario) was never meant to simply re-test academics. at would denigrate those who acquired HR-related academic certificates and their schools. Finally, the CCHRA "at source" accreditation program is in direct opposition to the American Na- tional Standards Institute (ANSI), standard 1100 which defines the requirements of meeting the ANSI standard for being a cer- tifying organization. According to ANSI, a professional certify- ing organization must meet two requirements: • Grant a time-limited credential to anyone who meets the assess- ment standards. • Provide an assessment based on industry knowledge, indepen- dent from training courses or course providers. The NKE has always been intended to test "professional" competency, as defined by a com- petency framework of industry knowledge. As such, it was meant to test candidates on the application of their academic knowledge — what you need to do in order to be a successful HR professional. Other questions arise: How will accreditation work? Will univer- sities and colleges across Canada co-operate, given the need for ho- mogeneous courses and content? Who will provide the standard- ized assessment of the courses? Will real standards be met across provincial boundaries? How of- ten will courses be re-asessed? What if the process finds a course inadequate? is program is likely a quick ride to mediocrity as accredited schools will now be incented to pass students with the required grades. I challenge accredited schools to benchmark their cur- rent pass rates at the required 70 percentile now versus five years from now — I predict a "gradua- tion creep." It is entirely reasonable that the member associations of CCHRA continue to work to develop the CHRP and make it responsive to members' and society's needs. After all, they are trying to hold together a national standard. But this accreditation program is going in entirely the wrong di- rection. It weakens the designa- tion and changes the focus from that of a professional designation based on industry knowledge to one that solely reflects academic achievement. Haven't we been working for over 30 years to make the prac- tice of HR more practical and professional? is initiative fails that test. Ian Turnbull is managing director at management consultants Laird & Greer in Toronto. Ian Turnbull Guest Commentary I challenge accredited schools to benchmark pass rates at the required 70 percentile now versus five years from now — I see "graduation creep." Accommodating creed requests How does an employer determine if an employee's request is legitimate? Question: How does an employer determine if an employee requesting accommoda- tion for a belief system or creed is legiti- mate, particularly if the employer hasn't heard of such beliefs before? Do any such requests deserve accommodation? Answer: e scope for an em- ployer to demand proof of an em- ployee's need for accommodation based on religion or creed is very narrow. Current case law suggests that where an employee seeks ac- commodation for a sincerely held belief, the employer must limit its inquiry to how and if it can accommodate the employee's re- quest without undue hardship. It has no right to establish the legitimacy of the employee's be- lief based on recognized doctrinal principles or to reject a request for accommodation without some reasonable basis to believe that the employee's belief is not sincere. If the employer fails to consider a request for accommodation be- cause it doubts the sincerity of the employee's belief, it may be called upon to justify that position be- fore an arbitrator or human rights tribunal. If it fails to consider a request for accommodation sim- ply because it does not recognize novel beliefs as legitimate or de- serving of accommodation, it will likely have no justification. e 2004 decision of the Su- preme Court of Canada in Syndi- cat Northcrest c. Amselem set the standard for assessing discrimi- nation claims based on religion and creed. In that case, a majority of the court held that a claimant need only establish a sincere belief or practice having a nexus with re- ligion when alleging infringement of her charter right to freedom of religion. ere is no obligation to prove the belief is an objective require- ment of a recognized religion or creed. e majority reasoned that practices can and do differ for each individual. It is sincerely held be- liefs that are deserving of protec- tion, whether or not they reflect the practices of other members of the same religion or creed. The subjectivity of this test clearly creates difficulties for em- ployers. It does not support an inquiry into the mandatory na- ture of a religious practice or its consistency with any identifiable faith or religion. If an employee sincerely believes the practice for which she seeks accommodation is an essential component of her personal observance of faith, the practice is protected and a claim for accommodation is justified under human rights legislation. e difficulties faced by em- ployers in such cases were out- lined in 407 ETR Concession Co. v. CAW-Canada, Local 414. In that case, the employees were members of Pentecostal church- es. ey refused to submit to bio- metric scanning for identification purposes based on their religious beliefs. They were terminated when no accommodation could be reached. eir churches re- garded the issue as a matter of individual conscience and did not purport to regulate their adher- ents' submission to scanning in any way. In the course of his decision al- lowing the grievance, the arbitra- tor 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 individ- ual extrapolation on core religious beliefs and required employers to assume the substantial burden of accommodating employees with- out any corresponding right to claim objective proof of the char- acteristics giving rise to the right. He pointed out that religion and creed as grounds of discrimina- tion were unique in this respect. Had the reasons of the minor- ity prevailed in Amselem, the employees would not have suc- ceeded as they could not show a reasonable belief that the practice was dependent on an established precept and was mandatory. e arbitrator regarded this result as more appropriate to a labour rela- tions context. e decision in Loblaws Super- markets Ltd. and UFCW, Local 1000A (Ferrentone), Re, is an ex- ample of a successful defence to a discrimination claim based on its lack of sincerity. In this case, the employer rejected the employee's request for Sundays off when he failed to demonstrate he was ei- ther prohibited from working by his Roman Catholic religion or he required the day off to engage in church or charitable activities. Evidence presented at the hear- ing showed the employee's atten- dance at Sunday mass was sporad- ic and he spent Sundays engaged in a number of secular activities. The arbitrator agreed with the employer that the employee's con- duct was inconsistent with a sin- cerely held belief that his faith re- quired him to have Sundays off for religious purposes 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 unfamil- iar manifestations of religion or creed may be limited to question- ing the sincerity of those beliefs if the facts allow. ere are obvious risks in assuming a request for ac- commodation is spurious simply because a faith- or creed-based claim appears novel, unprec- edented or unreasonable. Unless there is reason to doubt the employee'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 accom- modated, keeping in mind that the search for an accommodation requires all affected parties to act reasonably. For more information see: •Syndicat Northcrest c. Amselem, 2004 CarswellQue 1543 (S.C.C.). •407 ETR Concession Co. v. CAW- Canada, Local 414, 2007 Car- swellOnt 422 (Ont. Arb.). •Loblaws Supermarkets Ltd. and UFCW, Local 1000A ( fer- rentone), Re, 2012 CarswellOnt 10887 (Ont. Arb.). Tim Mitchell practises management- side labour and employment law at Norton Rose Fulbright's Calgary of- fice. He can be reached at (403) 267- 8225 or tim.mitchell@nortonroseful- bright.com. Unless there is reason to doubt, treat the employee's request as valid.

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