In the matter of an arbitration between OPSEU and Seneca College (Grievance #2009-0561-0014) 2011.
OPSEU contends that Seneca College's Religious Accommodation Policy breaches the college's obligations under the Collective Agreement:
2.3 Ontario Human Rights
The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the College because of [...] creed [...]. Accommodation, if it is required by the employee and it is determined to be required, is the duty of the College, the Union and the employee.
12.2 Personal Leave with Pay
Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisors concerned.
Leave of absence for personal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied.
At issue were the two following paragraphs from the Religious Accommodation Policy:
Requests for leave of absence for religious observance will not be unreasonably denied. An employee will be provided with the following options in order to ensure that the employee has the opportunity to participate in religious observances and to avoid loss of pay.
- make-up the time at a later date when the employee would not normally be scheduled to work and be paid at the employee's regular rate for the substituted shift/hours
- subject to Collective Agreements and operational requirements, an employee could be scheduled to work on a Saturday or Sunday where these are not days when the employee is normally scheduled to work and the employee would be paid the regular rate for hours worked.
- where operationally feasible, switch shifts/hours of work with another employee in the work unit.
- Where possible, the employee's shift schedule could be modified and/or adjusted (e.g. compressed work week)
- Use outstanding vacation day(s) or lieu time (where accrued) to be paid for the day(s) off for religious observance
- Take a leave of absence without pay
The above options are general guidelines and other options may be considered on a case-by-case basis.
Where all options have been considered and reviewed by the College and the employee, and there is no reasonable alternative identified as operationally feasible, the College may approve a leave of absence of up to two paid scheduled days for religious observance to full-time and partial-load academic, and full-time support staff and administrative employees on an annual basis. Approvals for such leaves will take into account the College's commitment to its students and where there is a minimum of disruption to the educational programs, services and/or operational requirements of the College. For the purposes of this policy, the annual period is from September 1 to August 31.
- The Union contends that the Policy makes paid leave the last resort option to be considered by the College. Is this a legitimate concern?
- The Union contends that paragraph four violates Articles 2.3 and 12.2 as well as the Union's representational rights as bargaining agents. Is this true?
- What does "extenuating personal circumstances" mean in the context of Article 12.2?
- See below
- Paid leave is not included in the list of potential accommodations provided in paragraph 4. This exclusion, coupled with the first sentence of paragraph 5 (supra), clearly makes paid religious leave contingent upon the exhaustion of the options listed in paragraph 4. This constitutes "undue fettering of the College's qualified discretion under Article 12.2.".
- While scheduling changes have been cited by recent decisions as providing "the fairest and most reasonable form of accommodation", those proposed in options 1 through 4 of paragraph 4 would involve waiving pay premiums and other requirements of the agreement. The Union is entitled to be present at all accommodation discussions involving the waiving of pay premiums and other agreement requirements. Option 5 is problematic because employers do not have the right to require employees to divert their vacation time/in lieu time to accommodate their own religious needs (they can, however, volunteer to do so). Finally, option 6 is problematic because, in contravention of the Code, it requires employees to accept adverse employment consequence in order to observe their religion.
- Article 12.2 contains the phrase "extenuating personal circumstances". The Arbitrator ruled that this phrase applied to all terms, including religious leave. He ruled that "although the precise meaning of Extenuating personal circumstances" in the context of requests for religious leave under Article 12.2 will have to be determined for the most part on a case by case basis, we find it appropriate to indicate for the guidance of the parties that we are of the view that it includes considerations such as the employee's work schedule and whether it can be varied so as to permit the employee to make up earnings which would otherwise be lost due to time away from work for religious observance. If, for example,as in the circumstances of Commission scolaria regional de Chambly v. Bergebin, supra, the nature of the work performed by the employee does not permit such variances and the employee is denied religious leave without loss of pay, the College may well be found to have violated Article 12.2 of the Agreement by unreasonably denying that leave" (page 27).
Amend the Policy...
1) To provide for Union involvement whenever the possibility of waiving a premium or other requirement of the Agreement is being considered in relation to a possible form of accommodation;
2) to add as an option paid religious leave, which will be available when all of the requirements of Article 12.2 (as described above) have been satisfied; and
3) to make it clear that taking an unpaid leave of absence without the opportunity to make up the lost earnings is the option of last resort, which is only to be used if none of the other options can be made available without imposing undue hardship on the College.