Holdout for 'perfect' accommodation fails (Legal View)

Employees must co-operate when it comes to accommodation requests
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 11/17/2014

An employee of a federal agency did not live up to his part of the accommodation process when he requested time off for religious holidays, found an adjudicator.


Anton Paul Andres was an auditor for the Canada Revenue Agency (CRA) in London, Ont. He had been with CRA since 1992. 


Andres was an Orthodox Christian, which recognized certain holy days according to a different calendar. As a result, some holidays fell on different dates than those celebrated by Western Christians.


In 2009, the Orthodox Good Friday and Easter Monday fell on April 17 and April 20, respectively — one week later than the Western Christian dates, which were defined as paid holidays for CRA employees under the collective agreement. The agreement also required the CRA to “make every reasonable effort to accommodate an employee who requests time off to fulfill his religious obligations.”


Employees could request unpaid leave, vacation leave or make up the hours if they needed to take time off for religious holidays, as long as they submitted the request at least four weeks ahead of time.


Request for accommodation

In early April 2010, Andres requested vacation leave for Orthodox Good Friday and Easter Monday, which was approved. On April 14, he asked for the time off as paid holidays, noting the collective agreement’s provision for unpaid leave along with another clause stating there should be no discrimination for religious affiliation. As a result, Andres requested he be granted paid leave rather than vacation.


The request was denied so Andres indicated he would take the days as vacation leave, as previously approved. In the past, he had taken the days off and made up the time, but with a family it was now more convenient for him to use vacation. However, he felt it wasn’t fair that those who didn’t celebrate Orthodox Easter didn’t have to use vacation time to get the days off.


Andres’ team leader offered him the options outlined in the collective agreement. But Andres said he wasn’t interested in taking the days off with pay or making up the time. He thought he could work on the regular Easter holidays, but the office wasn’t open on those days and he would have to be paid a premium.


Andres also said he could work from home — as he had in the past — but the CRA cited safety and security issues due to Andres’ private and sensitive work.


Andres filed a complaint with the Canada Public Service Labour Relations Board, claiming adverse discrimination under the Canadian Human Rights Act and the collective agreement’s anti-discrimination clause. He said the CRA failed to “engage in a meaningful discussion” about accommodating his request and there was no reason provided to him as to why it could not be made.


The CRA argued it made efforts to accommodate Andres by offering various options and it was not required to accommodate to the point of undue hardship “if undue hardship is not necessary to achieve accommodation.”


Adjudicator looks at dispute

The adjudicator said the CRA complied with the wording of the collective agreement, which “provided for a menu of options as to how religious obligations could be accommodated.” The provision included annual leave, compensatory leave, leave without pay and time off with pay made up by the employee later. The latter option was at the employer’s discretion.


The adjudicator also noted that Andres made his formal request for accommodation three days before the holiday — less than four weeks in advance.


By the time Andres requested he not use vacation time on April 14, the designated holidays had already passed so it wasn’t possible for him to work those days instead. And there was no record of Andres making that formal request, said the adjudicator.


Though Andres argued the CRA didn’t engage in a proper process of accommodation by having a conversation about it, the adjudicator disagreed. The lateness of the request didn’t give the CRA a chance to consider accommodation options, as he hadn’t initially indicated he wanted accommodation for the religious holidays, said the adjudicator.


“(Andres) has suggested that the employer, (himself) and the bargaining agent certainly could have entered into an agreement whereby (Andres) worked the designated paid holidays of Western Good Friday and Easter Monday for regular pay, not premium pay, and received Orthodox Good Friday and Easter Monday off with pay. In theory this is correct; however, there is no evidence that this discussion ever took place, let alone in a timely manner such that it could be considered or, if acceptable, implemented.”


The Supreme Court of Canada has ruled that an employee needing accommodation is not necessarily entitled to “perfect accommodation” — accommodation to the exact terms desired, said the adjudicator. As long as he is given reasonable accommodation options, the duty to accommodation could be fulfilled.


In this case, the CRA offered several options and if none of these were possible for Andres, the onus would be on him to show why, said the arbitrator, adding the accommodation options in the collective agreement were reasonable and Andres chose not to take any of them.


Given the lack of notice before he made his request and his insistence on doing exactly what he wanted to do, Andres failed his part of the accommodation process, said the adjudicator.


“While I agree with (Andres) that there needs to be a process, that process starts with (Andres),” said the adjudicator. “If the employer does not know that (he) needs or is seeking an accommodation, it cannot very well respond to it.”


For more information see:

• Andres v. Canada Revenue Agency, 2014 CarswellNat 3861 (Can. Public Service Lab. Rel. Bd.).


Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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