Toronto school board violated agreement, human rights code
An Ontario school board violated the discrimination clause in its collective agreement by failing to properly investigate accommodation options for a worker seeking a supervisory position who needed one day off a week for religious reasons.
Adam Habarta was a caretaker for the Toronto District School Board (TDSB) hired in November 1994. Habarta was a Jehovah’s Witness and his religious practice required him to spend one day a week to do missionary work. He was able to meet all of his other religious obligations on the weekends, 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 ministry.
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 written 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 during the afternoon shift while performing caretaker duties. They inspect the work of others, maintain shift records, and lock up at the end of the shift.
When the TDSB posts for positions 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 position 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 absence 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 requirement 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 temporary replacements.
In addition, the vacation schedules and sick time of other caretakers made it almost impossible to ensure the same person could replace Habarta every week. As a result, it appointed another caretaker who had 13 fewer years of seniority to the shiftleader postion at Habarta’s school.
The Canadian Union of Public Employees (CUPE) filed a grievance on Habarta’s behalf, claiming Habarta was discriminated 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 collective agreement.
CUPE also argued that while many of the replacement arrangements for an absent shift leader were ad hoc, with Habarta the TDSB could plan ahead by appointing a regular replacement each week.
Arbitrator Chistopher Albertyn found Habarta’s need for Thursdays off to attend religious duties was essential to his religious belief and warranted accommodation. So the question was whether the TDSB had done enough to consider accommodation before refusing him the shift-leader position.
Albertyn noted that in the absence of “an optimal accommodation” — 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 obligation to accommodate (Habarta), 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 process involving the employer, the union and the individual employee requiring accommodation,” said Albertyn. “Since the parties knew what (Habarta) needed, the real discussion ought to have occurred 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 arrangements being made between the TDSB, CUPE and Habarta.
If the discussions couldn’t come up with a workable arrangement that didn’t constitute undue hardship, only then could the TDSB conclude Habarta couldn’t perform the duties of a shift leader and return him to a caretaker position, said Albertyn.
Albertyn noted that there was evidence suggesting that some arrangement could likely have been reached, as most caretakers had experience performing temporary shift-leader duties and could step in when needed, including at Habarta’s school.
He also recognized that accommodating Habarta in a shift-leader position was “significantly more onerous” than accommodating him as a regular caretaker.
However, this didn’t necessarily mean it would cause undue hardship for the TDSB, said Albertyn.
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 accommodation plan.
The TDSB was ordered to appoint Habarta to a shift-leader position — with retroactive pay to February 2015 — and Harbarta would continue as a caretaker until accommodation arrangements were agreed upon by CUPE, the TDSB and Habarta.
For more information see:
• Toronto District School Board and CUPE, Local 4400 (Habarta), Re, 2016 CarswellOnt 19523 (Ont. Arb.).
