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Queen's University
 

Communications

Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications Limited (Global Television News).

Facts

The applicant, Vicki Anderson, was an editor for Global Television News and a member of the Rocky Mountain Mystery School (RRMS), a religious organization. She had already arranged her summer holidays with Global when she was chosen by RMMS to participate in an important religious initiation ceremony which would bring her closer to God and elevate her status within the organization (allowing her to teach for money). The pilgrimage, as she called it, was set to take place in Japan outside Anderson's vacation time. The Third Step Ritual Master Initiation was, apparently, a once-in-a-life-time opportunity and it was therefore extremely important for to her to go to Japan at that time.   

Vicki approached her manager and told her that she had the opportunity to partake in a religious pilgrimage in Japan.  Rather than give specific information about her religion, her beliefs and the singular importance of this initiation, she tried to explain her religious requirements in terms she might understand, using an analogy to pilgrimages made by Muslims to the Mecca or the calling of catholic bishops to become cardinals.  She requested six additional days off work . Her request was denied because she had failed to request the time-off within the time limits set forth in the Collective Agreement and because all the other editors were taking pre-approved vacation at the same time she needed to go to Japan.   In frustration, Anderson told her manager that if Global forced her to chose between her job and her religion; she was going to have to quit her job.

Rather than filing a grievance, Vicki asked the Union to intervene formally on her behalf, which it did. In the meantime, she prayed for a miracle, which came (according to her) in the form of a sports injury to her wrist.  With her dominant hand in a cast, Anderson was unable to perform her editorial duties.  The modified duties proposed by her employer (answering phones) caused her intolerable levels of pain, and Anderson received a note from her family doctor advising the employer that she would not be returning to work until August 7th.

The end date of this medical leave coincided with the end date of the vacation time she had been denied. The employer was dissatisfied with the family doctor's note and required that Anderson to receive an independent medical assessment. The latter revealed that she would be able to perform limited physical tasks and unlimited mental tasks.  Therefore, the employer met with the union to set forth an accommodation package in which Anderson would return to work immediately to act as a coordinator ("traffic cop")  in the editing room, a job requiring no "hands-on" work.   The employer relayed these modified duties to the Union, who relayed them to the employee, who claimed not to understand them. The employer then instructed the employee to return to work and encouraged her to seek clarification on the modified job duties as required.  The employee, instead, wrote her manager to advise that she had elected to return to work on the date prescribed by her family doctor (i.e. Aug 7th). After asking a coworker to clean out her locker, as she foresaw that she was going to be fired, Anderson bought a ticket to Japan, travelled to Mount Fiji, and participated in the religious initiation. When she returned, she was terminated for three reasons: 1) she quit 2) she failed to return from medical leave without a valid excuse 2) she was insubordinate. In Arbitration, it claimed that the employer is not responsible for subsidizing the vocational training of religious leaders.

Issues

  1. Were the employer's reasons for termination valid?
  2. Did the employer accommodate the employee's disability?
  3. Did the employer accommodate the employee's religious requirements?
  4. Did the employee cooperate fully with the employer when asking for religious accommodation?

Decisions

  1. No
  2. Yes
  3. Yes
  4. Yes

Reasons

  1. Anderson clearly indicated to the employer, in writing, that she intended to return to work on the seventh. She was not given medical leave, so she could not have failed to return from it.  She was, however, insubordinate "from a disability perspective and in the absence of special circumstances" when she failed to return to work as ordered. (33) For example, she pretended not to understand her new traffic cop duties (even though they were well explained), she failed to come to work to assess whether she could or could not tolerate those duties and she failed to go back to her family doctor for a reassessment, relying instead on a letter written about the first set of modified duties (not the second).
  2. The employer made an individual assessment of her situation, took steps to gather independent medical advice, suggested modified duties that complied to the physical limitations set forth in that assessment and clearly explained those duties to the Union, who in turn explained them to the employee. 
  3. The arbitrator used a two-part test, gleaned from case-law, and composed of the following questions 1) Has religious freedom been triggered? (See note #1)  2) Was the employer's interference with the employee's religious freedom enough ("in a manner that is more than trivial or insubstantial") to constitute an infringement under the Charter?  The arbitrator found that the answer to both questions was yes. Moreover, the arbitrator found that if Anderson  had attended work as ordered, she would have missed out on a singular opportunity to practice her religion. The opportunity to become a Master would not present itself again in the future.  The work obligation was therefore a substantial infringement of her religious freedom (39)
  4. She was insubordinate "from a disability perspective and in the absence of special circumstances" (33) when she failed to return to work as ordered. For example, she pretended not to understand her new traffic cop duties (even though they were well explained), she failed to come to work to assess whether she could or could not tolerate those duties and she failed to go back to her family doctor for a reassessment, relying instead on a letter written about the first set of modified duties (not the second).The employee's refusal to cooperate in the accommodation process does not show that the employer failed to accommodate her disability.

Order

Given the employee’s failure to inform the employer about her religious belief or practice, including her failure to grieve its denial of her religious leave, and given her insubordinate manipulation of the disability issue in order to achieve her religious ends, the Arbitrator refused to order compensation. However, the Arbitrator ordered that Anderson’s termination be reversed.

Notes

  1. Thus, at this first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that 1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and 2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.
  2.  Having reviewed the evidence, I find it proved that Ms. Anderson sincerely believed in the practice that she undertook in Japan, namely the Third Step Ritual Master Initiation. This Initiation had a nexus with her religion, namely the RRMS. In May, when Ms. Anderson was informed that it was time to take the next step as a Third Step Ritual Master, she considered that offer to do this service for God as his representative on earth to be a great honour and privilege. This was something that she had been hoping for in making her commitment to God more devout. In her e-mail to Ms. Clark of May 29, Ms. Anderson wrote, in part, that: “This is a deeply profound pilgrimage that I must take.” Additionally, the actual Third Step Ritual Master Initiation that she undertook was consistent with what she wrote in her email. In its argument, the Employer referred to the information on the RMMS website that a Third Step Ritual Master never works for free, that one is prohibited to work for free and that Jesus took pay for his services in food, water, clothes and shelter. From the evidence, it was evident that there was a spiritual essence and sincerity in Ms Anderson’s undertaking of the Initiation, with its nexus to her religion. In that regard, there was no suggestion that she was motivated by any vocational or pecuniary consideration. Moreover, the possibility that Ms. Anderson may receive an undefined payment for potentially “working” as a Third Step Ritual Master does not otherwise transform the spiritual essence and sincerity of Ms. Anderson’s Initiation into something that is essentially vocational. In that regard, she was not engaged in the performance of a vocational duty on behalf of the RMMS at any material time.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000