Muhammad Qureshi v. G4S Security Services (Canada) Ltd. and Michelle Curtis, 2009 HRTO 409

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muhammad Qureshi

Applicant

-and-

G4S Security Services (Canada) Ltd. and Michelle Curtis

Respondents

DECISION

Adjudicator: Alan Whyte

Date: April 9, 2009

Citation: 2009 HRTO 409

Indexed as: Qureshi v. G4S Security Services

1The applicant was rejected from the recruitment process for a security guard position with the respondent G4S Security Services (Canada) Ltd. (“the respondent” or “the company”). The applicant alleges the respondents’ actions amount to discrimination in employment on the basis of creed contrary to sections 5(1) and 9 of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is young man of the Muslim faith. The respondent is a large security services organization with 5500 employees in Canada and several operations in the province of Ontario. The personal respondent was at the material time a Human Resources Assistant employed by the company.

The Respondent’s Recruitment Process

3The respondent has a standard recruitment process for its security guard positions. An applicant completes an employment application and applicant information sheet. The applicant information sheet asks specific questions related to the duties of the security guard position. Three of the questions concern availability for various shifts and hours of work. Question seven asks “are you available to work all shifts (afternoons, nights, swing)”, question eight addresses availability for rotation shifts, and question nine relates to availability for twelve hour shifts and weekends.

4Following completion of a simple math test applicants are interviewed to confirm and follow-up on the information provided on the information sheet.

5If the job applicant is successful to this point, he or she is scheduled for a mandatory training session, which consists of 16 hours over two days, and which is conducted at the company's premises. The training is typically conducted by a company trainer although other employees of the company conduct training as well (including the personal respondent).

6Applicants then write an examination on the material covered in the training. 70% is the passing grade. If a job applicant receives a mark less than 70%, he or she may rewrite the exam, and, in certain cases, retake the second day of the training session followed by a further rewrite of the examination.

7Successful applicants must obtain a security guard license. Once the security guard license is received, the job applicant is placed on the work schedule. The company does not consider the job applicant to have been hired until his/her first day worked.

The Events Giving Rise to the Application

8In the spring of 2008, the company was recruiting for security guards to work in its Mississauga West region, and in particular, it was looking for security guards for its condominium portfolio of clients. To that end, it placed advertisements in newspapers seeking job applicants.

9The applicant testified that he saw the company's advertisement and attended at the company's office in Mississauga on May 27, 2008. At that time, the applicant was looking for employment which would generate income for him so as to allow him to attend university commencing in September, 2010. He had been accepted to university by this time but had deferred admission to September 2010.

10On May 27, 2008, the applicant completed the company’s employment application and applicant information sheet. The applicant indicated he was available to work all shifts, including rotation shifts, twelve hour shifts and weekends.

11He passed the pre-employment test and was interviewed by a representative of the company’s Human Resources department. At the interview, there was no detailed discussion about his availability for shift work and the applicant did not advise the interviewer that for reasons related to his Muslim faith, he would need approximately one hour off each Friday afternoon in order to pray.

12The applicant successfully passed the interview and was scheduled for training.

13The first day of training passed without incident. On June 20, a Friday, the applicant approached the trainer Russ at the lunch hour and advised him that he would need about one hour off that afternoon in order to go to the mosque to pray. There was discussion about the applicant's ability to write the test at the end of that afternoon, and Russ told the applicant that there was training being conducted on the following Tuesday or Wednesday. The applicant advised Russ that he was confident about the material in the training course and his first preference was to write the examination that evening. Russ indicated to the applicant that he might be allowed to do so by Human Resources but, if not, he could attend the second day of training during the following week and write the test at that time. Russ suggested he talk to Human Resources about his request for time off that afternoon.

14Both the applicant and the personal respondent testified as to the content of their discussion, and except for some minor points, their recollection as to what was said by each was similar. The applicant explained his need to leave the training session for about one hour in order to pray. The personal respondent took the position the training was mandatory and had to be completed. She asked whether the applicant would need to have time off on all Friday afternoons to pray if he was hired by the company as a security guard. The applicant replied in the affirmative. At that point the personal respondent told the applicant he could leave, she described this as telling the applicant that she "couldn't go forward with his application”, and added words to the effect that God would be very understanding that he had to work.

15The applicant said the personal respondent did not demonstrate any flexibility with respect to his request, and was quite terse in her dealings with him. The personal respondent denied this suggesting that the applicant seemed to be in a hurry and left quickly.

16As a result of this conversation, the applicant left without completing the training and without writing the written examination. He did not return as he understood that he had been ejected from the recruitment process for the security guard position.

17The applicant explained he had not revealed his need to take some time off on Friday afternoons in order to pray at an earlier stage in the recruitment process because he did not expect that that request would be an issue. He referred to the fact that in his past employment positions, he had been accommodated primarily through not being scheduled to work on Friday afternoons. When he was hired by the respondent, he expected that he would speak to his supervisor about his need for time off on Fridays and that they would work it out. He suggested that the need for time off could be addressed through scheduling or shift swaps. In cross-examination he conceded the failure to reveal his need to take time off earlier in the recruitment process was not fair to the company and that he had made a mistake in not doing so.

18Following his departure from the training session on June 20, the applicant continued his job search for a few weeks, and then decided to move to the Kingston area where his family lives. In order to get out of his lease at his Brampton premises, he was required to pay one extra month's rent in the amount of $400. He also incurred moving expenses in the form of a truck rental which he estimated at $200.

19The applicant continued his job search in the Kingston area but was unsuccessful in finding employment. Consequently, he decided to go to university one year earlier than he had planned, and he has been attending McMaster University in Hamilton in the engineering program since September 2008.

20The applicant described the effect of the respondents’ conduct on him. He felt depressed, angry and disappointed and he stated that this type of thing had never happened to him before. He said that he did not feel he was doing anything wrong by following his religion. He also said that between May 27 and June 19 he had received two phone calls from prospective employers (a call center and a grocery store) and that he had turned them down because he felt that he would be hired by the respondent. He also indicated that he wondered if Canada was the right place for him.

Decision

21The relevant sections of the Code are as follows:

s. 5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

s. 9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

22The Tribunal finds that the respondents discriminated against the applicant on the basis of his creed contrary to sections 5(1) and 9 above.

23As soon as the applicant advised the respondents of his need for time off on Friday afternoons in order to pray, the respondents rejected him from their recruitment process and refused to give any further consideration to his application for employment. As such, the necessary causal link between the respondents’ actions and the discriminatory effect experienced by the applicant has been established.

24The respondent argued that the applicant should have made his need for accommodation known earlier in the process. In addressing this submission, regard must be had to section 23(2) of the Code, formerly s. 22(2), which states as follows:

The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

25In view of the prohibition in this section, it is counter-intuitive to suggest that there is a positive duty on the part of a job applicant to reveal information to the prospective employer that may classify the applicant by a prohibited ground of discrimination. (See: Rapson v. Stemms Restaurants Ltd. (1991) 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 (Ont. Bd. Of Inq.).

26In its evidence and argument, the respondent made much of the alleged deceit on the part of the applicant; specifically the fact that the applicant did not advise the respondent in the early stages of the recruitment process that he needed time off on Friday afternoons in order to pray. It was argued that such “deceit” was not consistent with the company's values of honesty and integrity and accordingly the applicant was not, and never would be, a suitable employee of the company.

27In my view, this submission does not assist the respondent’s legal position. First, it is not consistent with the evidence which establishes that the reason that the applicant was released from the recruitment process was that he would be unavailable for work on Friday afternoons. Secondly, the respondent’s evidence was that, if the need for time off for religious observance had been revealed earlier, the effect would have been the same – immediate release from the recruitment process. The applicant’s request for accommodation would not have been dealt with any differently.

28The applicant did make his need for accommodation known to the company during the training session midway through the recruitment process. The applicant asked to be absent from the training for approximately one hour in order and was prepared to write the examination based on the training material that evening.

29I am satisfied the evidence shows that request was immediately rebuffed without considering whether it could be accommodated. The Supreme Court of Canada has consistently held that employers are required to accommodate the religious needs of an applicant to the point of undue hardship: see Ontario (Human Rights Commission) v. Simpsons Sears Ltd. (“O’Malley”) [1985] S.C.R. 536 (SCC), Central Okanagan School District No. 23 v. Renaud [1992] S.C.R. 970 (SCC) and Chambly (Commission Scholaire Regionale) c. Bergevin 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525 (SCC). The duty to accommodate has both a substantive and procedural component. Under the procedural component, the respondent must take adequate steps to explore and assess accommodation options. Once the respondent has engaged in the procedural process, the actual provision of accommodation short of undue hardship is considered as the substantive component: British Columbia (Public Service Employees Relations Commission) v. British Columbia Government Service Employees Union (B.C.G.S.E.U.) (Meirion) 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (SCC), at paragraphs 65 and 66.

30I am satisfied the respondents failed in their obligation to undertake a reasonable process to consider the applicant's request for accommodation referred to in such cases as Ghosh v. Domglas Inc. (No. 2) (1992) 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.), Allan v. Singh (1993) 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd. Inq.) and Lane v. ADGA Group Consultants, 2007 HRTO 34; aff’d 2008 CanLII 39605.

31Although the respondents’ evidence confirmed that job applicants who fail the first written examination are given the opportunity for a rewrite and, if necessary, re-attendance at the second day of training and a further re-write, no such opportunity was afforded the applicant. The evidence also confirmed the swapping of shifts between employees does occur, with management approval, and it is reasonable to conclude that shift swaps from either the morning or midnight shifts to the afternoon shift (which is when the applicant would need time off for prayers) would not be difficult to arrange. The respondent also agreed that transfers of employees to other sites and other shifts occur from time to time. The respondents did not advance any explanation at the hearing why similar opportunities were not considered as a means of accommodation of the applicant’s creed. The fact that such opportunities were available and were not considered further supports the conclusion that the respondent failed utterly to meet the first branch of the duty to accommodate. This is sufficient to dispose of the case but the respondent’s undue hardship arguments will be reviewed briefly nevertheless.

32The respondent argued that accommodation of the applicant’s religious observance would amount to undue hardship. They asserted the collective agreement governing these employees required it to “guarantee” full-time hours to all employees and this would not be possible if required to accommodate Friday afternoon prayers. The collective agreement was not produced into evidence and therefore the Tribunal does not have any basis to evaluate the nature or extent of this “guarantee” of hours and its impact on the applicant’s status as a full-time employee under the collective agreement. The company also asserted that if the applicant was accommodated by provision of time off on Friday afternoons, there would be “union problems”. The company's evidence in this connection was very vague and speculative and, in any event, both parties to a collective agreement have an obligation to provide accommodation short of undue hardship: Central Okanagan School District No. 23 v. Renaud 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.

33The respondent also indicated that the accommodation might cause it to incur costs related to call-in allowance and overtime. The company did not put forward any tangible evidence to that effect, and in view of the company's size, the Tribunal doubts that the financial consequences, if any, of providing accommodation to this applicant would significantly affect the company's financial position.

34The company also argued that a requirement to provide time off to the applicant on Friday afternoons would adversely affect its scheduling practices. Again, the company did not provide sufficient evidence to support finding this consequence would cause it undue hardship.

35The company also pointed out that condominium clients do not like to see different employees coming to work at their premises, and that accordingly the company attempts to schedule the same employees to work at the same premises as much as possible. However, the Tribunal has generally held that “customer preference” is not an appropriate factor in assessing undue hardship.

36The respondent suggested that it was open to the applicant to return to the company after his departure on June 20 in order to request that he be referred to other companies in the security services industry who might be able to accommodate his request for time off. The respondent indicated that it was a member of an association of security guard companies and that on occasion in the past, unsuccessful job applicants with the company had been referred by it to other companies for possible employment. Aside from the fact that the company made no effort to contact the applicant after June 20th in this regard, this is not a satisfactory undue hardship argument as the duty to accommodate cannot be delegated to a third party.

37A party will not meet its onus of establishing undue hardship if it refuses to provide concrete evidence in support of its undue hardship argument: Council of Canadians with Disabilities v. Via Rail Canada Inc. [2007] S.C.C. No. 15. I find that this onus has not been met in this case.

38For all of the above reasons, the Tribunal finds that the respondents failed to accommodate the applicant's creed as required by the Code.

Remedies

39The applicant seeks a monetary remedy in the total amount of $10,000 on account of lost wages, moving expenses, additional rent and compensation for the emotional and mental stress caused by the respondents.

40Turning first to the claim for lost wages, the Tribunal finds that it is likely that the applicant would have successfully passed the company's written exam, probably no later than June 25 which is Wednesday of the week following the applicant’s removal from the recruitment process (this takes into account the fact that the applicant may have failed the written examination if it was written on June 20, and it assumes that he would have passed the written examination had it been written by him on or about June 25).

41Given that the applicant had been successfully screened by the Canadian Armed Forces, I find on a balance of probabilities that a security guard license would have been issued to him. There is a period of time for that licence to be secured and thus the Tribunal finds that it is likely that the applicant would have started work on July 21.

42I am satisfied the end date for the wage loss claim is September 2, 2008, the point at which the applicant’s University term began.

43The period of lost wages runs from July 21 to September 2 at an average of 42 hours (given the company’s evidence that the full-time employees work between 40 and 44 hours per week), at $10 per hour for a total claim of $2520.

44I am not satisfied the claims for costs of breaking his lease and moving were reasonably foreseeable consequences of the respondents’ discrimination.

45With respect to monetary compensation for “loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect” the respondents’ discrimination had an impact on the applicant. The applicant had looked forward to working for the respondent for a period slightly in excess of one year, in order to earn monies to assist him in funding his university education. The applicant's main job experience up to the point of his application to the respondent was in the call center environment and the applicant felt that working as a security guard was better employment. The applicant was unable to secure employment during the summer of 2008 in either the western GTA area or in Kingston, and so he decided to go to university in September 2008. In fact, the applicant may have lost the opportunity for employment with two other employers at least during the summer of 2008 by virtue of his expectation that he would be employed by the respondent.

46As indicated earlier in this Decision, the applicant was angry, depressed and disappointed by the conduct of the respondents. Such discrimination had not occurred before in his experience, and he even questioned whether Canada was the right country for him.

47The respondents’ conduct on June 20 was insensitive and inflexible. The respondent made no effort to even consider whether it could accommodate the applicant's request for time off either in relation to the training session on June 20 or during the course of his employment if he was hired. The personal respondent’s reference to the applicant’s religion and his God were inappropriate even if they were not intended to hurt the applicant.

48In all the circumstances, the Tribunal assesses the applicant's damages for the injury to dignity, feelings and self-respect at $5000.

Future Compliance

49In his Application, the applicant makes a claim for a “public interest remedy” in the form of a request that the respondents make accommodation for people who require such consideration.

50The respondents produced a comprehensive “Company Handbook for Security Guards”. That handbook contains a number of personnel policies dealing with such issues as equal opportunities, employment equity, violence in the workplace and personal harassment and human rights. The most relevant policy is the equal opportunities policy which, among other things, indicates that no job applicant will receive less favourable treatment on the grounds of (among others) religion.

51The policy is incomplete in its description of the prohibited grounds of discrimination in the Code and does not specifically deal with the requirement for accommodation to the point of undue hardship or set out how requests for accommodation will be responded to by the company.

52In the circumstances, the Tribunal orders that the respondent amend the equal opportunities policy so as to directly address the accommodation of persons on the basis of the prohibited grounds under the Code, and to articulate the process that the company will follow in addressing such persons’ accommodation needs. The respondent is to retain the services of a consultant or lawyer with expertise in human rights and accommodation to provide advice on the creation of the policy. A copy of this decision is to be provided to the lawyer or consultant in advance of the preparation of this policy. The policy is to be finalized and disseminated to all company employees in Ontario by September 30, 2009; such dissemination is to consist of providing the policy to each employee with a paycheque or notice of direct deposit.

53In order to ensure that those persons most directly involved with accommodation issues in the company are aware of the company’s obligations respecting accommodation under the Code, the Tribunal orders that all Human Resources personnel employed by the company receive training with respect to accommodation (including the procedures and processes to be followed in the event of a request for accommodation) by no later than December 31, 2009. The respondent will retain the services of a consultant or lawyer with expertise in the law of human rights and accommodation to conduct this training. A copy of this Decision will be provided to the lawyer or consultant in advance of the training program.

Order

54The Tribunal finds that the respondents discriminated against the applicant contrary to sections 5 and 9 of the Code and orders the corporate respondent to:

(a) pay $2520 for lost wages;

(b) pay $5000 for loss arising out of the infringement of the Code, including compensation for injury to dignity, feelings and self-respect;

(c) pay pre-judgement interest (calculated from the date of the Application) and post-judgement interest (calculated from 30 days from the date of this Decision) in accordance with the Courts of Justice Act R.S.O. 1990, chapter c.43, sections 128 and 129 on these amounts;

(d) amend (with the assistance of a consultant or lawyer with expertise in human rights and accommodation) the equal opportunities policy so as to address the accommodation of persons on the basis of the prohibited grounds under the Code, which is to include the process that the company will follow in order to address requests for accommodation from such persons, and to disseminate such policy in the manner described in paragraph 52 to all Ontario employees, by no later than September 30, 2009; and

(e) engage a consultant or lawyer with expertise in human rights and accommodation to train all Human Resources personnel employed by the company with respect to accommodation, including the procedure and processes that will be utilized by the company in order to address such requests, by no later than December 31, 2009.