Rand v. Sealy Eastern Ltd.
1982-06-14
Ontario Board of Inquiry
ONTARIO
CHRR Doc. 82-060
Morley Rand and Canadian Union of Industrial Employees Complainants
v.
Sealy Eastern Limited, Upholstery Division Respondent
Place: Toronto, Ontario
Before: Ontario Board of Inquiry, Peter A. Cumming
Appearances by:
Robert Reuter, Counsel for Morley Rand, Canadian Union of Industrial Employees and the Ontario Human Rights Commission
Joseph Liberman, Counsel for Sealy Eastern Limited
RELIGION AND CREED — employment terminated — definition of creed — DISCRIMINATION — intention to discriminate — BONA FIDE OCCUPATIONAL QUALIFICATION — Etobicoke test — BUSINESS NECESSITY — employment policy discriminatory for economic reasons — REASONABLE ACCOMODATION — duty to accommodate short of undue hardship — survey of the law
Summary: The Board of Inquiry finds that Morley Rand, who is an Orthodox Jew, was discriminated against because of his creed when his employer required him to undertake a training program on Saturdays. The employer knew that Rand's beliefs prohibited him from working from sundown on Fridays until sundown on Saturdays. Because the employer was not satisfied with Rand's work performance but had no grounds to dismiss him under the terms of the collective agreement, the employer made a requirement upon Rand which they knew he could not meet because of his creed. In addition, the Board finds that finds there was no business necessity for holding the training program on Saturdays.
The Board considers the recent decision of the Ontario Divisional Court in O'Malley and disagrees with the Court's ruling that intention to discriminate is an essential prerequisite to a contravention of the Code. Citing many earlier decisions and the recent decision of the Supreme Court of Canada in the case of Borough of Etobicoke, the Board reasons that finding no intention to discriminate cannot be determinative since an objective test must still be applied.
Despite the Board's disagreement with the Divisional Court's decision in O'Malley, the Board acknowledges that it is bound by the decision and finds that there was an intention to discriminate in this case since the employer imposed the requirement and knew Mr. Rand could not meet it because of his creed.
The Evidence
1This Inquiry involves the complaint of Morley Rand, and the Canadian Union of Industrial Employees, through Peter Dorfman, its President, against Sealy Eastern Limited (Upholstery Division) (hereafter called "Sealy"). Mr. Rand worked as a maintenance mechanic "A" (see Exhibit No. 14) with the respondent, Sealy, at its factory or plant at 920 Caledonia Road, Toronto, from March 1980 to February 9, 1981, when his employment was terminated by Sealy. Mr. Dorfman is the president of the Canadian Union of Industrial Employees, the union representing the employees of Sealy at the plant where Mr. Rand worked.
2Mr. Rand is a strict adherent to the tenets and practices of Orthodox Judaism. As such, for religious reasons, he cannot work on the sabbath of the religion, being Saturdays, and on certain other days throughout the year (Evidence vol. I, p. 9; see also Exhibit No. 3, "Jewish Heritage Calendar for 1980–81"). The requirement of not working on Saturdays actually means not working from sundown Fridays to sundown Saturdays.
3Mr. Rand was hired by the respondent through Sealy's then plant manager, Greg Dadd, with Mr. Dadd knowing of his inability to work Saturdays (Evidence, vol. I, p. 19) and the requirement of his having sometimes to leave early on Fridays.
4However, after about seven months, Mr. Rand was requested to work overtime on Saturdays, for the purposes of a training program and preventative maintenance program, by Mr. Danny Tosh, the new plant manager, and Mr. Rand refused. He offered to work overtime in the evenings or on Sundays, but this was refused by Sealy. Sealy offered Mr. Rand alternative positions (as a "springer" and/or "packer") which would not require work on Saturdays, but Mr. Rand refused to take up either of these positions, and his employment was terminated February 9, 1981. Mr. Rand signed a complaint August 7, 1981 (Exhibit No. 2).
5Mr. Rand