Canadian Labour Reporter

May 1, 2017

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS but his missionary work had to be done on a weekday. Upon hiring Habarta, the TDSB agreed to accommodate his religious needs by granting him every Thursday off without pay to attend to his religious min- istry. He worked full-time hours the other four weekdays, and the TDSB found another caretaker to fill in for Habarta each Thursday. At the beginning of each school year, Habarta had to make a writ- ten request to his shift leader to continue the accommodation, which would then be granted. Habarta completed a shift- leader course in 2012 with the intention of applying for a shift- leader position. Shift leaders are responsible for overseeing other caretakers dur- ing the afternoon shift while per- forming caretaker duties. They inspect the work of others, main- tain shift records, and lock up at the end of the shift. When the TDSB posts for posi- tions five times a year, employees can apply for promotions and transfers, which are awarded based on seniority. On Jan. 7, 2015, the TDSB posted shift-leader positions and Habarta bid for several vacancies, expressing a preference for a po- sition at the school where he had been working since 2004. The TDSB felt Habarta was qualified to be a shift leader, but determined that he couldn't do the job because of his one-day ab- sence every week. Normally, absent shift leaders were replaced by an unassigned shift leader or assigning a regular caretaker already at the school in question to fill in. However, the TDSB believed it would be too difficult to find regular replacements for such a supervisory position every week and working five days a week was a bona-fide occupational require- ment of the shift-leader position. The TDSB also considered that Habarta's school was a large school requiring regular cleaning, many access points and greater overall responsibility, as well as budgetary limitations for tempo- rary replacements. In addition, the vacation schedules and sick time of other caretakers made it almost im- possible to ensure the same per- son could replace Habarta every week. As a result, it appointed an- other caretaker who had 13 fewer years of seniority to the shiftlead- er postion at Habarta's school. The Canadian Union of Pub- lic Employees (CUPE) filed a grievance on Habarta's behalf, claiming Habarta was discrimi- nated against by the TDSB on the grounds of his religion, which was a violation of both the Ontario Human Rights Code and a non- discrimination clause in the col- lective agreement. CUPE also argued that while many of the replacement arrange- ments for an absent shift leader were ad hoc, with Habarta the TDSB could plan ahead by ap- pointing a regular replacement each week. Arbitrator Chistopher Al- bertyn found Habarta's need for Thursdays off to attend religious duties was essential to his reli- gious belief and warranted ac- commodation. So the question was whether the TDSB had done enough to consider accommoda- tion before refusing him the shift- leader position. Albertyn noted that in the ab- sence of "an optimal accommoda- tion" — awarding the shift-leader position to Habarta at his school — the TDSB had an obligation to consult with Habarta and CUPE to try to find an "optimal solution" before deciding nothing could be done. "While the evidence shows that the (TDSB) took seriously its ob- ligation to accommodate (Hab- arta), and explored options on its own before it advised the union that it could not accommodate (Habarta), the procedural aspect of accommodation is a joint pro- cess involving the employer, the union and the individual employ- ee requiring accommodation," said Albertyn. "Since the parties knew what (Habarta) needed, the real discussion ought to have oc- curred between the (TDSB) and the union to try to find a way to address the employer's concerns for stability and continuity in the replacement of (Habarta) on one day a week." However, Albertyn found the TDSB didn't try to have any such discussion about what could be done to accommodate Habarta in the shift-leader position. Since Habarta was qualified and had the most seniority, he should have been appointed to the shift-leader position subject to suitable accommodation ar- rangements being made between the TDSB, CUPE and Habarta. If the discussions couldn't come up with a workable arrange- ment that didn't constitute undue hardship, only then could the TDSB conclude Habarta couldn't perform the duties of a shift lead- er and return him to a caretaker position, said Albertyn. Albertyn noted that there was evidence suggesting that some ar- rangement could likely have been reached, as most caretakers had experience performing tempo- rary shift-leader duties and could step in when needed, including at Habarta's school. He also recognized that ac- commodating Habarta in a shift- leader position was "significantly more onerous" than accommo- dating him as a regular caretaker. However, this didn't necessar- ily mean it would cause undue hardship for the TDSB, said Al- bertyn. Albertyn determined that the TDSB breached the collective agreement and the Human Rights Code by failing to meet its duty to accommodate by working with CUPE and Habarta to try to come up with a reasonable accommo- dation plan. The TDSB was ordered to ap- point Habarta to a shift-leader position — with retroactive pay to February 2015 — and Harbarta would continue as a caretaker un- til accommodation arrangements were agreed upon by CUPE, the TDSB and Habarta. For more information see: • Toronto District School Board and CUPE, Local 4400 (Hab- arta), Re, 2016 CarswellOnt 19523 (Ont. Arb.). < Accommodation pg. 1 Worker off one day each week not hardship: Arbitrator Photo: Andrey_Popov (Shutterstock) TDSB had an obligation to consult with Habarta and CUPE

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