Demands for time off work proving more difficult than demands involving apparel
A Montreal security officer is asking his employer and his to union to guarantee Sundays off to allow him to practice Catholicism. But Sylvain Turcotte’s union says the request can’t be met because it would mean other union members with more seniority would have to take his place.
An Ottawa lawyer says religious accommodation is an issue employers and unions will increasingly have to deal with as the business world extends its hours around the clock.
George Vuicic with the firm Hicks Morley in Ottawa says he has already seen “a tonne” of cases involving religious requests coming before the courts.
“What we’re seeing are a number of different scenarios,” he says. In one recent case, an employee, also Catholic, asked for extra time off to observe specific saints days. The worker was already entitled to two paid days off for religious observation.
Vuicic says the case went before an arbitrator because the employer initially refused and asked for more information, such as how long the employee had been observing these specific days. The worker was offended by the request.
“But the arbitrator ruled the employer is entitled to ask more questions to make an assessment,” he says. “All of the rights under the Charter of Rights and Freedoms are not absolute. They’re subject to reasonableness.”
Vuicic says cases involving dress, such as a Muslim woman who wants to wear a hijab to work, are often easier to accommodate because no one is directly affected. What’s increasingly difficult for employers and unions is the issue of time off.
In the on-going case in Montreal, Turcotte says he is a “devout” Catholic and Sunday is a day of rest. Vuicic says the issue is slightly muddier.
“The Supreme Court has said it doesn’t matter what the doctrine is. It looks at what the employee believes and whether the action they’re taking is required,” he says. “There have been cases where it’s not strictly required by the religion. The employee has to establish that he or she has a sincere religious belief.”
He says it’s a “tricky situation” to prove a person’s religious sincerity. Regardless, as with other accommodation requests, the courts consider first whether the request is reasonable.
“The onus then flips to the employer to prove there’s undue hardship,” he says. “For an employer, with the issue of (religious) dress it’s a harder burden to prove.”
Vuicic says several cases in Canada have confirmed that the employer “can’t just dismiss” the claim. The employer must consider its operational requirements, its reasons for requiring the person to work on that particular day, the collective agreement where there is one and seniority rights.
This is where religious accommodation becomes a union issue, too. In the Turcotte case in Montreal, his union isn’t pushing his case because of seniority. Vuicic says seniority is a legitimate argument in terms of reasonableness. However, he says unions have managed to successfully accommodate similar requests in the past.
“In one case, it was a scheduling issue so the employer proposed a rotating schedule so others could cover,” he explains. “In another, the union proposed only junior employees could be asked to cover those days.”
Like an employer, a union can refuse a proposed accommodation if it would result in undue hardship to other members of the bargaining unit. However, the Supreme Court has distinguished between concerns over legitimate rights, i.e. protection of seniority, and concerns based on stereotypical or discriminatory reactions.
Turcotte has said publicly that he believes his religion is hurting his case. Vuicic confirms most cases in Canada have involved workers asking for the Sabbath or non-Christian holidays off.
