Additional Religious Holidays
Can be Accommodated by Scheduling Practices
The Ontario Court of Appeal has quashed, as "patently
unreasonable", the GSB’s conclusion that a policy limiting the number
of paid religious days off was discriminatory.
Under the "Religious Observance Policy," dating
from 1991, members of religious minorities are limited to two extra days off
with pay for religious observances to reflect the two Christian-based
statutory holidays of Christmas Day and Good Friday.
The policy was challenged in 1995 by OPSEU on behalf of
Anthony Tratnyek, a program analyst, who asked for 11 days off with pay to
observe the religious holidays of his denomination, the Worldwide Church of
God.
The ministry’s response was that although he could take
the 11 days off, he would be paid for only two of them. The employee responded
by filing two grievances, each alleging discrimination on the basis of
religion.
At the hearing of the Grievance Settlement Board, OPSEU
contended that provisions in the collective agreement allowing paid leave for
"special purposes" and under "special grounds" should be
interpreted as allowing paid leave for religious observances. The Union said
that without such an interpretation the policy would have a discriminatory
effect of Tratnyek, putting him in a position, not faced by his Christian
co-workers, of having to choose between losing wages or encroaching on
pre-existing earned entitlements and observing his religious holy days.
In its decision, the board allowed the grievances in part.
Board Vice-Chairman Murray Gorsky said that although the policy was factually
neutral, it did not meet the test for "substantive equality." He
stated:
"Because some religions or branches thereof have
only two mandatory days when a member would be expected to absent
him/herself to engage in religious observance does not mean that equal
treatment without discrimination will follow is every other religion or
denomination thereof is given two days off with pay to observe some of
their holy days."
In allowing the ministry’s request for judicial review,
the Court of Appeal concluded that the "compressed work week" option
available to Tratnyek permitted him to take time off for the holy days without
losing pay. That option allowed employees to adjust working hours and complete
15 working days in 14 days. The Court held that "the resulting ‘day to
spare’ could then be used for religious observance purposes." Tratnyek
could "bank" the days and thus be able to observe the sect’s
multi-day religious festivals.
The Court added that "employers can satisfy their
duty to accommodate the religious requirements of employees by providing
appropriate scheduling changes, without first having to show that granting
a leave of absence with pay would result in undue economic or other
hardship." Only if the proposed scheduling causes significant hardship
or inconvenience to the employee must other forms of accommodation be
explored.
