Court adopts a more practical approach to undue hardship

Workers fired for refusing to work Friday nights because of religious beliefs

A recent decision of a three-judge panel of the Ontario Divisional Court (Ontario (Human Rights Commission) v. Roosma, [2002] O.J. 3688, released Sept. 19, 2002) strongly suggests courts will be adopting a more practical and business-like approach to the concept of accommodation to the point of undue hardship under the Ontario Human Rights Code.

The case has been dragging through the legal process since January 1985. Roosma and Weller were both employees of the Ford Motor Company of Canada at its Oakville, Ont. plant. They became adherents of the Worldwide Church of God sometime in 1984. The WWC observed its Sabbath from Friday sunset to Saturday sunset.

Both employees worked shifts that would ordinarily require them to work two Friday nights out of four. They refused to do so because of religious beliefs. They sought to discuss the possibility of alternative work assignments, training people (on their own time) to work their shifts, switching shifts with other workers, or having a pool of trained substitutes to cover their position on Friday evenings. These arrangements continued for about two years.

Ultimately these arrangements failed. Both employees were subject to discipline due to unauthorized absenteeism and were ultimately fired. The union refused to support them because it determined all of the possible solutions unduly interfered with the seniority principle in the workplace or the legitimate management rights of Ford.

At the hearing in front of the tribunal, there was extensive evidence as to whether it would be undue hardship on Ford to accommodate them. The commission emphasized that Ford was a profitable global corporation with millions of dollars in sales. Ford adduced evidence of the practical difficulties of implementing the alternate work arrangements requested by the two employees.

After a 71-day hearing, the Ontario Human Rights Tribunal decided it would constitute undue hardship on Ford to accommodate the religious absences of these two employees. In arriving at this decision the tribunal reviewed a number of factors including:

•Although Ford had been profitable between 1984 to 1988, it faced fierce competition in the automotive sector, particularly from Japanese manufacturers;

•Ford’s Oakville plant already had to cope with high levels of absenteeism on Friday evenings for reasons unrelated to religious observances;

•the alternative work arrangements proposed by the employees would disrupt seniority arrangements under the collective bargaining agreement;

•co-workers were reluctant to work the Friday evening shift; and

•there were additional hidden costs due to increased fatigue and error when employees were required to work double-shifts to cover for Roosma and Weller.

The Ontario Human Rights Commission used an accountant to analyze the financial impact of accommodating the two employees. The accountant concluded the financial impact on Ford to accommodate 20 shifts was “negligible,” ranging from $1,132 to $12,710 depending on the accounting method used.

All three judges of the divisional court agreed they would only overturn the tribunal’s decision if it were unreasonable. The majority of the court concluded there was no palpable or overriding error in the tribunal’s reasons.

The reasons behind the decision adopt a much more flexible and business-like approach to the issue of accommodation to the point of undue hardship. The court also found the union had met its obligations to accommodate the employee. It concluded:

“In examining whether Ford had discharged its burden of proving that accommodation was not possible short of undue hardship, the board determined that the general purpose of the Oakville plant structure was aimed at a rational and legitimate business objective, namely to achieve a quality product. Ford's deliberations on how it might accommodate the complainants and its reasons for not providing other forms of accommodation were reviewed in detail. The board assessed undue hardship, taking into account the financial cost, the interchangeability of the operation, the importance of having the regular operator on each job, the impact of the collective agreement, safety considerations and the substantive effect of accommodation on other workers. ...

“The options suggested by the commission involved significant incursions into the seniority rights of other workers in the Oakville plant. The seniority level was unusually high in this particular work place. ... [T]he average age was probably in the high 40s or above, and breaches of seniority were considered very seriously by the workers. The board found that the union made ample efforts to assist the complainants by maintaining regular contact with them, as well as an ongoing dialogue with Ford to seek some form of accommodation.”

It is significant that the divisional court did not refer in the course of its reasons to the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate.

While not strictly applicable, these guidelines provide a very stringent definition of undue hardship. In upholding the tribunal’s decision, the court implicitly rejected the commission’s definition of undue hardship and accepted the tribunal’s more pragmatic approach.

The issue of accommodation will no doubt continue to be litigated. There was a strong dissenting judgment written by one of the judges. All three judges, however, strongly supported the importance of seniority rights in a unionized workplace. The commission has filed a motion for leave to appeal with the Ontario Court of Appeal.

Neena Gupta is a partner practising employment law with Goodman and Carr LLP in Toronto. She can be reached at (416) 595-2480 or [email protected].

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