Giving paid days off for Jewish holiday undue hardship for school board: Arbitrator

Forcing Jewish teacher to take unpaid leave for Passover was discriminatory but there was no way to make up the time for extra holidays

A Toronto teacher’s bid to get paid time off for Jewish holidays has been quashed by an arbitrator.

Mordichai Bashari was a supply teacher in the English as a second language (ESL) program for the Toronto District School Board (TDSB). Bashari specialized in long-term assignments, meaning he filled in for permanent ESL teachers when they were absent from work for longer than nine weeks. Each assignment was for a fixed period of time and the TDSB predetermined the number of days Bashari would teach.

Bashari, who was Jewish, asked for paid leave for three days during an assignment to celebrate Passover. The collective agreement didn’t provide for paid days off for religious observance, though it was later amended to allow for the use of up to three sick days for religious reasons. However, the TDSB said because of the nature of his work, Bashari wouldn’t be able to make up the time and it couldn’t afford to pay him for three extra days of work. Bashari was granted three unpaid days of leave instead.

The union grieved on behalf of Bashari and other non-Christian teachers, saying the TDSB breached the collective agreement and the Ontario Human Rights Code, resulting in discrimination based on their religion. Because their holidays weren’t on the school year schedule and they had to take unpaid days off to celebrate, the union said, Bashari and others “must forgo wages to observe their religion.”

TheTDSB argued giving Bashari three paid days of leave without receiving any labour in return was contrary to the fundamental employment relationship and beyond the scope of accommodation. It also said its finances were precarious and allowing Bashari, and by extension all TDSB employees, paid leave for their own religious holidays would bring undue financial hardship and force it to cut staff and programs.

The arbitrator agreed it was discrimination under the code to force an employee to forgo wages to observe religious holidays. Therefore, the TDSB’s granting of unpaid days was “on its face, discriminatory.” However, she referred to the Hydro-Quebec case, where the Supreme Court of Canada affirmed that “the duty to accommodate does not change the essence of the employment contract — which is to ‘perform work in exchange for remuneration.’”

The arbitrator said the goal of the employer’s duty to accommodate was to assign — and reconfigure, if necessary — work so the employee can provide labour in return for wages. The employer was not obligated to pay wages that weren’t earned.

In Bashari’s situation, the arbitrator found it wasn’t possible to reassign work, because his work could only be done face-to-face with students during school hours. There was nothing the TDSB could do to make up three days of lost work that would be the result of Bashari taking three extra holidays during normal school time. The arbitrator found the point of undue hardship was met.

The arbitrator ruled providing Bashari with three days of unpaid leave was the extent of accommodation the TDSB could provide without reaching the point of undue hardship and dismissed the grievance.

“It is well accepted that an accommodated employee who cannot work a full schedule of hours is not entitled necessarily to be paid for those hours which cannot be worked,” the arbitrator said. “Why should it be different if the employee cannot work because of religious obligations rather than disablement?”

For more information see:

CUPE, Local 4400, Unit B v. Toronto District School Board (Dec. 10, 2008), Kevin Whitaker — Arb. (Ministry of Labour, Arbitration Services).

Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.).

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