The grievor was employed in retail and was scheduled to workj on Sunday. He objected, claiming his religious denomination would not permit work on Sunday. The arbitrator questioned the depth of the grievor's faith and found that the employer was only required to give him time to attend Sunday services.
After signing off on an agreement consenting to Sunday shifts, a worker at a retail grocery chain grieved. The worker said that the employer’s Sunday work requirement was discriminatory.
S.F. began his employment at a retail grocery chain in 1994. At that time, Sunday shifts were voluntary.
In response to competition from other grocery chains, beginning in 2002 the employer developed a new superstore chain.
The employer negotiated new collective agreements for the new stores featuring lower wages and standard Sunday work.
However, the employer did retain a number of the original outlets, which continued to operate under the original business model.
Faced with these changes, employees had a number of options. Depending on their seniority, they could bump in to a position in one of the original locations.
They could also end their employment with the employer and accept a buy out worth four weeks’ wages for every year of service. That option came with a $10,000 minimum and a maximum of $75,000.
Buy down
There was also a “buy down” option. The buy down provided employees who were willing to work at the new stores with three weeks’ salary for every year worked. The same minimum and maximum as the buy out option applied to the buy down.
To qualify for the buy down and receive payment, employees were required to sign off on an agreement consenting to the new collective agreement provisions at the superstores, including mandatory Sunday work.
S.F. took the buy down. He worked Sunday shifts when required until early 2007 when he suffered an injury and was off work for a few months. When he returned to work, S.F. told his employer that he had renewed his faith and that he required Sundays off work in order to observe the Sabbath.
The employer offered to accommodate S.F.’s need to attend Mass by allowing him to split his shift. The employer also reminded S.F. that Mass is often held a number of times on Sundays and even on Saturday nights.
S.F. refused the offered accommodation and insisted on Sundays off.
S.F. grieved.
The union argued that S.F. had demonstrated an honest and sincere desire to refrain from working on Sundays in order to observe the rituals associated with his faith. The union said that by requiring S.F. to work on Sundays, the employer was discriminating against him on the basis of creed contrary to the Ontario Human Rights Code.
Subjective test
The union said that the test of the bona fides for a claim of religious freedom formulated by the Supreme Court of Canada in Amselem is a subjective test. An individual must establish that he or she is acting sincerely “as a function of his or her spiritual faith, irrespective of whether a particular practice is required by official religious dogma or is in conformity with the position of religious officials.”
Moreover, the union charged that the employer’s surveillance of S.F.’s Sunday activities amounted to a reprisal against S.F. for exercising his rights.
The employer said that S.F.’s desire for Sundays off had more to do with lifestyle than faith. S.F.’s declarations to the contrary were not sincere and therefore were not protected by Amselem, the employer said. The employer could demonstrate that S.F.’s Sunday attendance at church was sporadic and that he generally made use of Sundays to engage in secular activities.
The employer denied that its surveillance of S.F. was in any sense a reprisal. Observations of S.F. were only undertaken after he refused the offered accommodation and made it clear that he intended to litigate his grievance.
The Arbitrator agreed.
“[I]n accordance with Iaccobucci J’s instruction in Amselem I have considered the grievor’s evidence and whether his alleged belief is consistent with his current religious practice. With that in mind I have difficulty in accepting the sincerity of the grievor’s claim.”
S.F.’s attendance at Mass was sporadic. On the Sundays that he did work, he made no effort to take advantage of the employer’s offered accommodation, which was to split the shift and return after Mass.
Beyond his occasional appearance at Mass, S.F. was unable to show that he used his Sundays to participate in special church activities or charitable works.
“Indeed, the grievor stated in his evidence that in his view, he should have Sundays off… to do whatever he pleased. That does not, in my view, reflect what Iaccobucci J. described in [Amselem] as a sincere ‘undertaking in order to connect with the divine… as a function of his spiritual faith.’ ”
The grievance was dismissed.
