Worker’s holdout for ‘perfect’ accommodation fails

Employee’s refusal of accommodation options not a failure of employer to accommodate: Adjudicator

The duty to accommodate is a fundamental principle in employment law. It’s a legal duty placed upon employers in order to protect the human rights of employees who may otherwise be subject to discrimination under a ground protected by human rights laws that could prevent them from making a living. But the duty isn’t just on employers.

The accommodation process is a two-way street: Employers must make reasonable efforts to accommodate an employee with a disability or protected characteristics, but employees must participate in the process. From making a formal request and informing the employer of the need for accommodation to providing necessary information, accommodation can only go as far as the employee takes it. And that also means the employee must accept any reasonable accommodation options, not just what she prefers.

An employee of a federal agency did not live up to his part of the accommodation process when he wasn’t allowed to take religious holidays, an adjudicator has ruled.

Anton Paul Andres was an auditor for the Canada Revenue Agency (CRA) at its tax services office in London, Ont., since 1992. Andres was an Orthodox Christian, which recognized certain holy days according to a different calendar. As a result, holidays such as Easter and Christmas usually fell on different dates than those celebrated by Western Christians.

In 2009, 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 collective agreement also had a clause requiring the CRA to “make every reasonable effort to accommodate an employee who requests time off to fulfill his religious obligations.” Employees had the option of requesting unpaid leave, vacation leave or making 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 for religious holidays

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. Andres noted the collective agreement’s provision for unpaid leave, but also pointed out another clause that stated there should be no discrimination for religious affiliation. As a result, Andres requested he be granted paid leave rather than use vacation days.

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

Andres met with his team leader, who offered him all the options outlined in the collective agreement. However, he said he wasn’t interested in taking the days off with pay and making up the time. He thought he could work on the regular Good Friday and Easter Monday holidays, but the office wasn’t open on those days and the collective agreement required the payment of a premium to employees who worked on designated paid holidays.

Andres also said he could work from home, but the CRA didn’t encourage this because there were safety and security issues due to Andres’ work involving private and sensitive taxpayer information. Though Andres had worked from home in the past, he hadn’t done so in the previous six months as the CRA kept a tighter grip on its data.

Andres filed a complaint with the Canada Public Service Labour Relations Board, claiming he was the victim of adverse discrimination under the Canadian Human Rights Act, as well as the collective agreement’s anti-discrimination clause. He said the CRA fialed to “engage in a meaningful discussion” about accommodating his request and there was no reason provided to him as to why accommodation could not be made. Andres argued he should have been allowed to take the Orthodox holidays as paid holidays rather than having to use vacation days and allowing him to work on the regular Good Friday and Easter Monday holidays would have been “a simple and direct way” to accommodate him without having him go over the established number of designated paid holidays all employees received under the collective agreement.

The CRA argued it made efforts to accommodate Andres by offering him the various options available under the collective agreement. However, Andres refused those options and only wanted to take the days as paid holidays. It was not required to accommodate to the point of undue hardship “if undue hardship is not necessary to achieve accommodation,” said the CRA.

Collective agreement set out options for accommodation

The adjudicator acknowledged that there was no dispute there was a requirement for the CRA to accommodate Andres on religious grounds and the collective agreement contained provisions to address such accommodation. The adjudicator found that 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 — which was agreed upon by both the CRA and the union as part of their collective bargaining — 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 discretion of the employer.

The adjudicator also noted that Andres made his formal request for accommodation three days before Orthodox Good Friday, which was less than the collective agreement’s stipulation of four weeks in advance. His first request — made in early April — simply asked for vacation time for the Orthodox holidays. By the time Andres requested that he not have to use vacation time on April 14, the designated holidays of Western Good Friday and Easter Monday had already passed, so it wasn’t possible for him to work those days instead. In addition, there was no record of Andres making a formal request for that option, 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 collective agreement laid out the process, which should be a “multi-party inquiry involving the employer, the union and the employee.” However, the lateness of Andres’ 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,” said the adjudicator.

The adjudicator noted that the Supreme Court of Canada had ruled that an employee needing accommodation was not necessarily entitled to “perfect accommodation” — accommodation to the exact terms desired. As long as the employee was given reasonable accommodation options, the duty to accommodate could be fulfilled. In this case, the CRA, through the collective agreement, offered several options to accommodate the need to have time off for religious holidays not covered by the designated paid holidays. If none of the options were possible for Andres, the onus would be on him to show why, said the arbitrator.

The adjudicator determined 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 (him),” said the adjudicator. “If the employer does not know that (Andres) 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.).

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