In Markovic v. Autocom Manufacturing Ltd.the Ontario Human Rights Tribunal was recently asked to review Autocom's Procedure for Accommodation of Religious Observances ("the Policy") to determine whether it was in keeping with obligations under human rights legislation and applicable case law. The case involved an employee, Savo Markovic, a member of the Serbian Orthodox Church, who wished to take time off to observe Eastern Orthodox Christmas on January 7. While Autocom provided all of its employees with two days of leave with pay to observe the Western Christian holidays of Good Friday and Christmas Day, it did not extend two days of paid leave to non-Western Christian observant employees requesting time off for religious observances. Instead, Autocom's Policy incorporated a "menu of options" which employees requesting time off work to accommodate religious observances could select from. The options provided to employees included the ability to make up time missed, switch shifts with another employee, have their schedule adjusted if the employer was able to do so, use paid vacation or take a leave of absence without pay. The Policy expressly indicated that the employer was to accommodate to the point of undue hardship and extended to employees the ability to appeal any decision made regarding their request for religious accommodation.
The Ontario Human Rights Commission contended that the Policy was insufficient in that it failed to provide employees with an option of taking up to two days of paid leave for religious observance (initially the Commission took the position that Policy ought to provide employees with the two paid days as a first-instance option unless the company could show undue hardship but they backed away from that at the hearing). In the Commission's view, a work calendar that paid employees for not working on Christmas and Good Friday, but not for other religious holidays, had a discriminatory impact on members of non-Western Christian (ie. minority) faiths. The Commission also took the position that the menu of options approach in Autocom's Policy imposed an unfair burden on employees who wished to take time off for religious observances as it, in effect, required them to negotiate with the employer for time off rather than simply having time off provided to them such as in the case of Western Christians (who were given Good Friday and Christmas off, with pay, without such negotiation).
Noting that Autocom's Policy provided a process for employees to arrange for time off for religious observances through a range of options, including scheduling changes, without loss of pay, Adjudicator Sherry Liang concluded that the Policy satisfied legal requirements. Of particular interest, are the following remarks and findings made by Adjudicator Liang:
- although Christmas Day and Good Friday originated as Western Christian religious observance days, over time they have become secular pause days;
- a work schedule that permits observant Christians time off to celebrate Christmas and Good Friday but requires work on holy days of other religions is discriminatory in effect and the duty to accommodate concerns searching for a solution that permits time off for religious observances, without adverse employment consequences, to those of other faiths;
- after reviewing the key legal decisions in the area of workplace accommodation of religious observance, she concluded that none of them require an employer to provide non-Western Christian employees with two paid days of leave in order to meet its human rights law obligations. Although she recognized that what constitutes reasonable accommodation must be examined in light of the particular circumstances of each case, it was her view that the provision of options for time off through scheduling or related changes with no pay loss can be sufficient for an employer to discharge its duty to accommodate religious differences. So, in this case, Autocom was not required to provide the two paid days off suggested by the Commission either as an initial form of accommodation or as an option at all;
- she found the adjustment to work schedules as an appropriate form of accommodation to be consistent with the Supreme Court of Canada's recent decision in Hydro-Quebec which indicated that the duty to accommodate is to co-exist with the regular contract of employment. In other words, permitting scheduling changes without loss of pay enables an employer to continue to obtain the services it requires of all of its employees while still enabling all employees to observe their particular religious holy day(s);
- she found the Policy's menu of options for religious accommodation to be consistent with the individualized nature of the duty to accommodate and supportive of autonomy of choice, as expressed by the Supreme Court of Canada's decision in McGill University Health Centre. On this point, Adjudicator Liang rejected the Commission's concern about the Policy imposing an undue burden on employees who needed to request accommodation under it. In her view, the accommodation process, by its very nature, ought to be a dialogue between employer and employee and there was nothing burdensome about the possibility that negotiation might be required to reach reasonable accommodation.
The Autocom decision is a useful one for employers. It certainly sheds light on what is required of employers in regards to the accommodation of religious observances in the workplace. But, it also illustrates the impact recent Supreme Court of Canada jurisprudence may have for employers now and in the future with the clarification of the balance to be struck between the duty to accommodate and the essential aspects of a contract of employment. As noted by Adjudicator Liang:
"...the duty to accommodate is about the design and modification of workplace requirements to enhance the ability of certain employees to participate in the workplace without, at least in the first instance, dislodging the assumption of services for pay."
