Koroll v. Automodular, 2011 HRTO 774

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Koroll

Applicant

-and-

Automodular Corporation

Respondent

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)

Intervenor

AND B E T W E E N:

Douglas Koroll

Applicant

-and-

Automodular Corporation and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)

Respondents

decision

Adjudicator: Sheri D. Price

Date: April 19, 2011

Citation: 2011 HRTO 774

Indexed as: Koroll v. Automodular

APPEARANCES

Douglas Koroll, Applicant )Self-represented

Automodular Corporation, Respondent )Michael Horvat, Counsel

National Automobile, Aerospace, Transportation and General Workers Union of Canada ) (CAW-Canada), Intervener/Respondent )Lewis Gottheil, Counsel

INTRODUCTION

1The Applications in the above-captioned matters were filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in respect of employment on the basis of creed.

2The applicant identifies himself as a practicing Christian as defined by the Living Church of God. In keeping with the tenets of his religious faith, the applicant observes weekly Sabbaths, from sunset on Friday to sunset on Saturday, and various other holy days, referred to as High Sabbaths, throughout the year. The applicant’s religious beliefs require him to refrain from working on the weekly or High Sabbaths.

Time off with Pay on Religious Holy Days

3In Tribunal file 2008-00609-I, the applicant alleges that the respondent employer, Automodular Corporation (“the employer”), infringed his rights under the Code by refusing to give him the High Sabbaths off with pay. Throughout the course of his employment, the employer has given the applicant time off without pay in order to observe the High Sabbaths. However, the applicant submits that the Code requires the employer to give him two or three days of paid religious leave per year to allow him to observe his religious holy days.

4The applicant alleges that his trade union, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (“the union”), is also liable for this alleged infringement of his right to be free from discrimination on the basis of creed. He submits that the union’s liability arises from its failure to negotiate a provision for paid discretionary leave into the collective agreement with the respondent employer. If it had done so, the applicant contends, he could have accessed such paid leave to take the High Sabbaths off with pay. The applicant further submits that the union is liable for breaching his rights under the Code because it did not pursue the applicant’s grievance seeking paid religious leave to arbitration or with as much vigour as other grievances.

Perfect Attendance Bonuses

5In Tribunal file 2008-00490-I, the applicant alleges that the employer’s Attendance Recognition Program discriminates against him on the basis of creed. Pursuant to that program, employees of the respondent receive quarterly and annual bonuses for perfect attendance during the quarter or year, as the case may be. The applicant alleges that he was improperly denied bonuses under the program in respect of quarters where his attendance was perfect except for the Sabbaths when he was unable to work because of his religious beliefs.

HEARING

6The material facts were not in dispute and so the parties presented their respective positions by making oral submissions at the hearing.

7At the hearing, the applicant indicated that he was not pursuing allegations in his Applications relating to alleged offensive comments in the workplace; or with respect to the imposition of discipline on him by the employer.

8Shortly after the hearing, the employer submitted an additional legal authority, Boundy v. Ontario (Children and Youth Services), 2009 HRTO 1667, for the Tribunal’s consideration. That case was submitted in response to a query I made during the oral hearing as to whether the parties were aware of any Tribunal decisions applying the Ontario Court of Appeal’s reasoning in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, (1999) 42 OR (3d) 692, 1999 CanLII 3687 (ON CA) (“Orillia Soldiers”), a decision relied upon by the employer.

9The applicant took this as an opportunity to make further written submissions to the Tribunal. The applicant wrote that the time for him to have the “final word” at the hearing had been inadequate (although he did not raise this at the time of the hearing), and so he wished to add to the reply submissions he had made orally at the hearing. The union wrote to the Tribunal indicating that it did not propose to reply to these submissions unless the Tribunal directed that it was permitted and/or ought to do so. The employer did not respond or seek to respond to the applicant’s post-hearing submissions.

10I have reviewed the applicant’s written submissions. By and large, they merely reiterate points made by the applicant at the oral hearing and do not add in any meaningful way to his oral submissions at the hearing. The submissions do perhaps go somewhat beyond what the applicant said at the hearing regarding the union’s alleged liability for infringing the applicant’s rights under the Code, in that he refers to case law in support of his arguments in that regard. Even taking into account the applicant’s written submissions, however, and for the reasons set out below, the applicant has not established that the union infringed his rights under the Code. Accordingly, it was not necessary for me to seek further submissions from the parties in response to the applicant’s post-hearing written submissions and I did not do so.

REMOVAL OF PERSONAL RESPONDENT

11At the commencement of the hearing, the employer made a Request to have Luisa Cecchia removed as a party to the Application in Tribunal File 2008-00490-I. Ms Cecchia is the Human Resources coordinator at the respondent’s Oakville facility where the applicant is employed. As there was no objection from any of the other parties, I granted the respondent employer’s Request at the hearing and Ms Cecchia was removed as a party to the proceeding.

BACKGROUND

12The respondent employer is engaged in the automotive parts and assembly business and operates an assembly plant in Oakville, Ontario.

13The applicant has worked for the respondent employer since May 2006 and works at its Oakville plant as a material handler. He is an hourly employee. The applicant is a member of the bargaining unit of employees represented by the union and the terms and conditions of his employment are governed by a collective agreement between the union and the employer.

Applicant’s Religious Needs

14When the applicant started working for the employer, the Oakville plant operated only on day shift, and so the applicant worked day shift, Monday to Friday.

15While working on the day shift, the applicant was able to observe the weekly Sabbaths without any form of accommodation because his shift ended before sunset on Friday. However, if a High Sabbath had fallen on what was otherwise a regular working day for the applicant, the applicant would have needed to absent himself from work in keeping with the tenets of his faith.

16Some time after the applicant started working for the employer, the employer introduced an evening shift at the plant. When that happened, the applicant, like other employees, was expected to rotate between the day shift and the evening shift on a biweekly basis.

17Since part of the Friday evening shift was after sunset, working the entire Friday evening shift would have required the applicant to work on his weekly Sabbath, which he could not do in keeping with the tenets of his religious faith.

Request for Accommodation

18On June 5, 2006, and in anticipation of the introduction of the evening shift, the applicant wrote to the employer formally advising it of his religious need to refrain from working on the weekly and High Sabbaths and requesting that the employer accommodate his needs. The applicant also provided the employer with the dates which he would be unable to work because of a High Sabbath for 2006 and 2007 and a copy of a page from a booklet setting out the dates of the applicant’s holy days through 2010.

19In the employer’s August 2006 written response to the applicant’s request, it expressly acknowledged that the applicant’s religious beliefs prevented him from working on the Sabbaths. The employer further acknowledged that the applicant’s inability to work on the weekly Sabbaths prevented him from working the two Friday evening shifts he would ordinarily be required to work during each four-week shift rotation period.

20As a form of religious accommodation, the employer proposed to rearrange the applicant’s work schedule so that, during those weeks he was working evening shift, the applicant would get off work early on the Thursday evening so that he could come back in on Friday morning to work the eight-hour shift he would normally work on the Friday, but during the day instead of the evening. This would relieve the applicant from the requirement to work after sunset on Friday (i.e. the weekly Sabbath) during weeks that he was assigned to work the evening shift.

21The employer recognized that the proposed change to the applicant’s hours would result in the applicant losing two hours’ work (and pay) during the weeks he was on evening shift. The employer proposed to remedy this by providing the applicant with an opportunity to make up the two hours during the week.

22As for the High Sabbaths, the employer advised the applicant that it was willing to accommodate his need to refrain from working on the High Sabbaths by granting him a leave of absence without pay. Alternatively, the employer wrote to the applicant that he could use vacation days, if available, to take the High Sabbaths off with pay.

23In or around September 2006, the applicant agreed to the employer’s proposed accommodation as far as the weekly Sabbaths were concerned. However, he maintained that he was entitled to have the High Sabbaths off with pay and continued to pursue that issue.

24On January 24, 2007, and having tried the employer’s proposed accommodation in relation to the weekly Sabbaths for a while, the applicant wrote to the employer to propose a revision to his religious accommodation. Instead of continuing the accommodation agreed to in September 2006, the applicant proposed that he work his regularly scheduled hours on the Monday to Thursday evening shifts and take the Friday evening shifts off without pay. The applicant offered a number of reasons for his proposal. First, although no supervisor ever complained about accommodating the applicant, the applicant felt that his leaving early left the Thursday evening shift supervisor short-handed. He also felt that the accommodation inconvenienced the Friday day shift supervisor who, according to the applicant, had to struggle to find enough work for the applicant to do. Moreover, although the applicant had the requisite eight hours off between shifts (Employment Standards Act, 2000, S.O. 2000, c. 41, (“ESA”) s.18(3)), he said he felt tired working the Friday day shift. The applicant thus suggested that it “would be better all the way around” for him to complete the Thursday evening shift and take the Friday shift off without pay.

25The applicant acknowledged that his proposal, if implemented, would cause him to lose some hours of work during weeks that he was on evening shift. However, he did not seek an opportunity to make up those hours. He wrote:

As for the hours that I fall short, there is no legal requirement, no moral or ethical responsibility, and simply no concern to me to make them up or to recover them by some artificial method. It simply does not matter. This revision offers a gain to the company and to me that far outweighs the loss to me personally.

26By letter dated March 5, 2007, and following some further discussion about the matter, the employer agreed to the applicant’s request. From that point, during the two weeks in every four-week shift rotation that the applicant was scheduled to work evenings, the applicant worked his regularly scheduled shifts Monday to Thursday and took the Friday off without pay.

Grievance regarding Time Off with Pay on Religious Holy Days

27Meanwhile, on September 21, 2006, the applicant submitted a request for a leave of absence without pay to allow him to celebrate one of his High Sabbaths, Yom Kippur, on October 2, 2006. The applicant submits that he initially submitted a request for a leave of absence with pay but it was ignored by the employer, so he was compelled to put in a request for a leave of absence without pay for the holy day. The employer granted the applicant’s September 21, 2006 request and the applicant took the day off without pay.

28On October 24, 2006, the applicant filed a grievance through the union seeking eight hours’ pay for the holy day he had taken off without pay on October 2, 2006.

29In response to the grievance, the employer denied that it had a legal obligation to grant the applicant paid leave in order to observe his religious holy days. At one point during the grievance process, the employer did offer to let the applicant transfer his paid Christmas Holiday floater days to cover his absence on certain religious holy days, including October 2, 2006. However, if the applicant chose to avail of this option, he would not be permitted to work on or be paid for the Christmas Holiday floater days when they arose in December. The applicant rejected this suggestion since, in his view, it would mean allocating the loss of a day’s pay to a different day, but would not actually solve the loss of pay issue. In its final answer to the grievance, the employer maintained its willingness to grant the applicant a leave of absence without pay to observe the High Sabbaths when they fell on what would otherwise be a work day for the applicant, but refused to give the applicant the time off with pay.

30The applicant’s union sought and obtained a written legal opinion as to whether the applicant was entitled to paid leave for religious observances. In that opinion, the union’s legal counsel advised that the applicant was not entitled to paid time off to observe his religious holy days. On the other hand, the union’s legal counsel advised that requiring the applicant to take time off without pay or to use vacation entitlement to take the High Sabbaths off with pay was likely insufficient to fulfill the employer’s duty to accommodate the applicant. The union’s legal counsel suggested that the parties canvas options which would permit the applicant to adhere to the tenets of his faith without suffering a financial loss, such as giving the applicant an opportunity to make up the hours lost as a result of his absence on the holy days; or allowing the applicant to take his holy days off with pay by allowing him to avail of any special paid leave which might exist under the collective agreement. The union provided the applicant with a copy of the written opinion at a meeting on March 1, 2007.

31There is no suggestion that discretionary or special paid leave was or is available under the applicable collective agreement as a means by which the applicant might take his religious holy days off with pay. Indeed, the applicant submits the union’s failure to negotiate such discretionary leave makes it liable for infringing his rights under the Code.

32The union submits that, after receiving the above-noted legal opinion, it suggested to the applicant that he pursue an opportunity to make up the hours lost as a result of his inability to work on the High Sabbaths. The union points out that, as of early 2007, there were two Fridays in every four-week period when the applicant was not working at all (i.e. the Fridays during weeks the applicant was working evening shift). The union submits that it should have been relatively easy for the applicant to work a few hours on some of those Fridays to make up the 16 to 24 hours per year he was seeking to take as paid religious leave (i.e. two or three eight-hour days per year). Alternatively, the union submits that the applicant could have sought to add a couple of extra hours’ work to some of his Monday to Thursday shifts to make up the time.

33The union submits that when it raised the possibility of make-up opportunities with the applicant, he rejected it. According to the union, the only form of accommodation the applicant was willing to accept was paid time off on his religious holy days.

34The applicant does not dispute that things transpired as the union submits, although he says that he cannot remember the discussion. He agrees, however, that either he rejected the union’s suggestion that he pursue make-up opportunities as a form of religious accommodation in respect of the High Sabbaths; or, if the suggestion of make-up opportunities was not made, then he would have rejected it if it had been.

Attendance Recognition Program

35In or about January 2007, the employer introduced an Attendance Recognition Program (“the program”) at the Oakville plant to recognize “perfect work attendance” among bargaining unit employees at the plant. The program came into effect the quarter commencing April 1, 2007.

36The stated purpose of the program is to “recognize plant hourly associates for their ability to report to work and remain at work for every scheduled work shift” in a tangible way by providing them with quarterly and annual bonuses.

37Under the program, employees with perfect attendance during the quarter receive a $75.00 gift certificate for selected large retailers. Employees with perfect attendance for the year receive their choice of a jacket or a $150.00 gift certificate. In addition, employees with “perfect work attendance” on a quarterly and/or annual basis have their names entered into a draw for a chance to win further cash prizes.

38The employer’s Attendance Recognition Program defines “perfect work attendance” as follows:

An hourly plant associate will report to work on every work shift for which they are either assigned or volunteer to work (i.e. regular shifts and overtime shifts). Unauthorized and unapproved shift absences, lateness and leaving work area will disqualify an individual hourly associate from attaining a perfect work attendance record.

39The employer submits that, in order to achieve perfect work attendance, an employee must report for every shift which s/he is scheduled to work during the quarter or year in question. An employee who is absent from a shift s/he is scheduled to work for any reason is not considered to have “perfect work attendance” during the period in question and does not receive the prescribed bonuses for such period. The employer acknowledges that employees may thus be excluded from bonuses for “perfect work attendance” because of entirely legitimate and valid absences from work, including because they are on sick leave, long term disability leave, parental leave, pregnancy leave, or leave to observe religious holidays.

40In his Application in Tribunal file 2008-00490-I, the applicant alleges that other than absences on the Sabbaths, he had perfect attendance for the last quarter in 2007 and the first three quarters in 2008. At the hearing, however, and having had an opportunity to review his attendance records, the applicant agreed that in fact he was late or absent for non-religious reasons on one or more occasions during the last quarter of 2007 and the first two quarters of 2008. This, the employer submits, would have disqualified the applicant from attaining “perfect work attendance” under the Attendance Recognition Program, regardless of his absence on the Sabbaths. The applicant did have perfect attendance during the third quarter of 2008 as there were no religious or non-religious absences or lateness during that quarter (the applicant’s absences on the weekly Sabbaths were treated as absences from “unscheduled” shifts and were therefore not counted against him); and he received the appropriate quarterly bonus for that period.

41In view of the above, the employer submits that the applicant was never excluded from recognition under the Attendance Recognition Program – at least not in respect of the quarters complained about in the Application - on the basis of creed. The employer submits that, while it might be open to the Tribunal to find that there was a breach of the Code in the application of the program, there is no basis to find that such breach resulted in the denial of a benefit to the applicant.

42Since the employer acknowledged that the applicant’s absence on the High Sabbaths were counted against the applicant under the Attendance Recognition Program and would have resulted in his exclusion under the program if they had been his only instances of absence or lateness, the argument proceeded with respect to whether the employer’s policy had been applied to the applicant in a discriminatory manner.

LAW AND ANALYSIS

43The relevant sections of the Code are as follows:

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.

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

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Whether Duty to Accommodate Requires Time Off with Pay for Religious Observance (Tribunal file 2008-00609-I)

44The issue in this Application is whether the employer has a duty to accommodate the applicant by providing him with paid leave in order to observe the High Sabbaths.

45There is no dispute that the applicant’s religious beliefs which prevent him from working on the High Sabbaths fall within the ground of creed in s. 5 of the Code.

Prima Facie Case of Discrimination

46In order for the duty to accommodate to arise, the applicant must first make out a prima facie case of discrimination under the Code either by showing that the respondent treated him in a disadvantageous manner on the basis of his creed; or by showing that a requirement, qualification or factor which appears to be neutral on its face has an adverse effect on him because of his creed within the meaning of s.11 of the Code.

47The law is clear that requiring employees to take days off work without pay or to use pre-existing entitlements such as vacation in order to observe their holy days constitutes constructive or adverse effect discrimination within the meaning of s. 11 of the Code.

48The leading case on this point is Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, 1994 CanLII 102 (S.C.C.) (“Chambly”). In that case, Jewish teachers were required by their employer to take a day off without pay in order to celebrate Yom Kippur. The Supreme Court of Canada found that insofar as the Jewish teachers had to lose a day’s pay in order to observe a holy day, the work schedule was discriminatory in its effect against the members of an identifiable group based on creed (at para. 18).

49The Ontario Court of Appeal reached the same conclusion in Ontario (Ministry of Community and Social Services) v. O.P.S.E.U., (2000) 50 O.R. (3d) 560, 2000 CanLII 16854 (ON C.A.) (“Tratnyek”). In that case, the court found that the employer’s Religious Observance Policy had a discriminatory effect on the employee in question because it “did not fully remove the barriers that would otherwise prevent him from observing his religious holy days without losing pay and without having to encroach on pre-existing earned entitlements.” (at para. 53).

50In this case, there is no dispute that in the absence of some form of accommodation, the applicant would be required to work on his annual High Sabbaths, when they happen to fall on what would otherwise be work days for the applicant; or that the applicant is required to take unpaid time off work in order to observe these holy days. Applying the law to the facts of the case at hand, I have no difficulty concluding that the employer’s requirement that the applicant take unpaid time off work in order to observe his religious holy days constituted adverse effect discrimination within the meaning of s. 11 of the Code; and that the respondent employer therefore had a duty to accommodate the applicant up to the point of undue hardship: Chambly, supra, at para. 19.

Duty to Accommodate

51The applicant submits that the only issue in this Application is whether the employer infringed his rights under the Code by not giving him time off with pay to observe the High Sabbaths. He submits that the Code requires the employer to accommodate his religious needs by giving him two or three days of paid leave per year to observe his religious holy days.

52The respondent employer submits that the Code does not require it to provide the applicant with paid leave on the High Sabbaths.

53The respondent union submits that the Code requires the employer to accommodate the applicant by giving him time off on his holy days without loss of pay. This, the union submits, requires the employer to give the applicant an opportunity to make up the hours he misses from work because of his religious beliefs (i.e. a make-up opportunity). The union does not agree that the employer is required to give the applicant paid time off work for religious observances. In the union’s submission, it is the chance to make the money he will otherwise lose on his holy days, and not the money itself, to which the applicant is entitled under the Code.

54For his part, the applicant does not agree that a make-up opportunity would be an appropriate form of accommodation in the circumstances of this case. The applicant submits that an opportunity to make up the hours he misses from work on his holy days would really be him “accommodating himself” and “paying himself with his own money”. He says he does not see how a makeup opportunity could work in his circumstances, and submits that, in any event, paid time off for religious leave ought to be regarded as the “default” option available to him.

55In the employment context, the duty to accommodate is fundamentally about enabling employees to participate in the workforce. The duty to accommodate does not, however, require employers to compensate employees who are either unable or unwilling to participate (i.e. work) as if they were doing so. It does not fundamentally alter the employment bargain by requiring the payment of wages for no work in exchange: Markovic v. Autocom Manufacturing Ltd., 2008 HRTO 64 at para. 38; Canadian Union of Public Employees, Local 4400, Unit B v. Toronto District School Board (Bashari Grievance) (“CUPE v. TDSB”), (2008) 178 LAC (4th) 182 at 188-190.

56The Supreme Court of Canada explained this in Hydro-Quebec v. Syndicat des employees de techniques professionelles et de bureau d’Hydro-Quebec, (2008) SCC 43:

… the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration…

The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work (at para. 14-16).

57The Ontario Court of Appeal reached a similar conclusion in Orillia Soldiers. At issue in that case was whether the duty to accommodate nurses off on disability leave required the employer to compensate them on the same basis as nurses actively employed. The court found that the duty to accommodate does not impose on employers “the burden of simply topping up the wages of the disabled employees,” a suggestion it found to be “inimical to the principles underlying the Code.” (at para. 54) The court confirmed that the goal of accommodation is to put the employee in a position where he can do the available work, not to compensate him according to a different standard than the one applicable to his peers (at paras. 55 to 56).

58Although the decision in Orillia Soldiers related to the employer’s duty to accommodate disability-related needs, in my view, its reasoning applies with equal force with respect to creed. Whether accommodation is directed to the needs of an employee with disability-related needs or an employee seeking to participate in religious observance, the goal of accommodation is generally the same: CUPE v. TDSB, supra, at 190. See also Orillia Soldiers, supra, at para. 44-54.

59In a case very similar to this one, CUPE v. TDSB, supra, at 191, the arbitrator similarly found that “accommodation is not the payment of wages for no work in exchange, but rather the facilitation of the opportunity to work all of the time available for the performance of work.” He found that the duty to accommodate obliged the employer to reconfigure the work and the workplace to the point of undue hardship so as to enable the employee to work the hours that would otherwise be available to him, absent the need for religious leave. However, the duty to accommodate did not require the employer to provide income continuation where no work could be performed. (supra, at 190).

60The applicant in this case argues that giving him two or three days of paid religious leave per year would not even begin to cause undue hardship for the employer. However, undue hardship is not the issue. It is clear from the above-noted cases that, leaving aside those circumstances where some kind of paid leave is otherwise available, accommodation does not require the payment of wages for no work in exchange, which is what giving the applicant paid time off on the High Sabbaths would entail. Of course, this does not mean that an employer may not accommodate an employee’s religious needs by providing paid leave. It certainly may do so (subject to any objection from the employee), but that is not what the Code requires: Orillia Soldiers, supra, at para. 56.

61Nor is this finding inconsistent with the Supreme Court’s decision in Chambly. In Chambly, the Supreme Court found that the employer was required to accommodate the teachers’ religious needs by allowing them to access paid leave which was available under the applicable collective agreement to cover absences for “valid” reasons. However, as this Tribunal has previously found, Chambly does not require employers to provide employees with two or three days of paid religious leave where some form of paid discretionary or special leave is not otherwise available: Markovic, supra, at para. 49-52. Such a reading would go beyond what the court found in Chambly and would be inconsistent with the courts’ subsequent decisions regarding the nature of the duty to accommodate.

62In sum, the duty to accommodate certainly requires the employer to look for ways to accommodate the applicant’s need to absent himself from work on his religious holy days without loss of pay; and to implement such measures where they do not pose undue hardship to the employer: Markovic, supra; Chambly, supra; Tratnyek, supra; Richmond v. Canada, (1997) 1997 CanLII 4890 (FCA), 145 DLR (4th) 622 (FCA). The duty to accommodate may thus require the employer to rearrange the applicant’s work so as to enable him to work the hours that would otherwise be available to him, absent his need for religious leave. Whether accommodation up to the point of undue hardship takes the form of make-up assignments or other adjustments to the applicant’s schedule, the goal must be to facilitate an opportunity for the applicant to work his full complement of hours, without encroaching on his religious beliefs. Where special or discretionary paid leave is not otherwise available, however, the duty to accommodate does not require the employer to give the applicant paid time off for religious observance.

63As I have already noted above, the applicant was very clear in his Application and at the hearing that the only issue in this case is whether he is entitled to two to three days of paid leave per year to observe his holy days. This case was not about whether giving the applicant the High Sabbaths off without pay or offering to let him use accrued vacation days to take them off with pay was sufficient to fulfill the respondent employer’s duty to accommodate the applicant. As the dispute between the parties is whether the Code entitles the applicant to paid religious leave, that is the issue which I have determined.

64For the above reasons, the applicant’s claim in Tribunal file 2008-00609-I that the respondent employer breached its duty to accommodate him under the Code by refusing to provide him with paid leave on his holy days is dismissed.

Union Liability

65I must also dismiss the applicant’s claim that the respondent union infringed his rights under the Code.

66In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 (Renaud), the Supreme Court of Canada described the two ways in which a union may become a party to constructive discrimination in respect of employment:

First, it may cause or contribute to the discrimination in the first instance by participating in the formulation of the work rule that has the discriminatory effect on the complainant. This will generally be the case if the rule is a provision in the collective agreement. It has to be assumed that all provisions are formulated jointly by the parties and that they bear responsibility equally for their effect on employees. (…. )

Second, (…) If reasonable accommodation is only possible with the union's co-operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination. (See also Holowka v. Ontario Nurses Association, 2010 HRTO 2171 at para. 39-40.)

67In this case, there are no facts alleged which would allow me to conclude that the union was a party to discrimination against the applicant in either of the two ways described by the Court in Renaud. I have found that the requirement that the applicant take unpaid leave on the High Sabbaths or use his vacation days to take his holy days off with pay had a discriminatory effect on the applicant. However, there is no allegation that the union participated in the formulation of that requirement or that such requirement is contained in the collective agreement. Thus, there is no basis upon which I could conclude that the union was party to the adverse effect discrimination against the applicant. It was the employer who required the applicant to take his holy days off without pay or take them as vacation days, not the union. Nor is there any allegation that the union blocked the employer’s efforts to accommodate the applicant in any way.

68Even if I were to find that the union participated in formulating the work rule which had an adverse effect on the applicant because of his creed, the union would not be liable for infringing the applicant’s rights under the Code as long as it fulfilled its role in accommodating the applicant to the point of undue hardship. The applicant does not dispute that the union advocated accommodative measures such as makeup opportunities which would have removed the discriminatory effect of the work rule on the applicant. Thus, even if the union had a duty to accommodate the applicant, I would have found that the union discharged that duty by proposing reasonable accommodations of the applicant’s religious needs.

69The applicant disputes that he could have made up the hours he missed on the High Sabbaths in the manner advocated by the union. He submits that given his need to take at least eight hours off after the Thursday evening shift before returning to work on the Friday (s. 18(3) of the ESA); and given his need to refrain from working on the weekly Sabbath, it would have been impossible for him to work a full eight-hour shift on those Fridays he was off during the weeks he was on evening shift.

70However, the union did not suggest that the applicant make up the 16 to 24 hours he sought to have off as paid religious leave by working eight-hour shifts on those Fridays that he is unscheduled. Rather, the union suggested that the applicant could work a few hours on several Fridays over the course of the year to make up the requisite time. This would have allowed the applicant to comply with the ESA and adhere to his religious beliefs. Nor did the applicant have an adequate explanation for why he could not occasionally add a couple of hours to some of his ten-hour shifts during the course of the year to make up the 16 to 24 hours sought. Accordingly, I am not persuaded that the applicant’s religious needs could not have been accommodated in the manner proposed by the union.

Failure to Pursue Applicant’s Grievance

71The applicant argues that the union discriminated against him on the basis of creed by not pursuing his October 24, 2006 grievance to arbitration; and/or by not pursuing it as vigorously as it pursued other grievances alleging that the applicant had been unjustly disciplined by the employer.

72I cannot agree with the applicant that the union has a legal duty under the Code to pursue any and all human rights grievances with more vigour than other kinds of grievances or to take them to arbitration, regardless of their merit. In order to succeed in his claim that the union’s failure to pursue his grievance constituted discrimination under the Code, the applicant would have to establish that the union’s decision in that regard was based on his creed or some other discriminatory factor. As the Tribunal stated in Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996 at para. 33:

(…) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors. (See also Arias v Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 16-17)

73In this case, the employer denied the applicant’s request for paid religious leave. The union responded to the employer’s decision by filing a grievance on the applicant’s behalf and pursuing it through the grievance procedure. It stopped short of referring the grievance to arbitration because it received a legal opinion advising that the outcome sought by the applicant (i.e. paid religious leave) was unlikely to be achieved. The union was willing to explore alternatives to paid religious leave which would allow the applicant to observe his religious holy days without loss of pay. However, since the applicant believed that he was entitled to two or three days of paid religious leave per year, he was not interested in alternatives to that. In those circumstances, the union made what in my view was a rational decision not to pursue the applicant’s grievance to arbitration. In any event, there are certainly no facts alleged, which, if true, would allow me to conclude that the union’s decision not to proceed to arbitration with the applicant’s grievance was based in whole or in part on the applicant’s creed.

74Moreover, assuming, without finding, that the union did fail to pursue the applicant’s October 24, 2006 grievance as vigorously as the applicant’s other grievances (the union denies this), I fail to see how that fact alone could give rise to a finding that the union discriminated against the applicant on the basis of his creed. It seems to me that any failure to vigorously pursue the applicant’s grievance was most likely a reflection of the merits of the grievance. In any event, there are simply no facts alleged which, if true, would allow the Tribunal to conclude that any failure on the part of the union to pursue the applicant’s paid religious leave grievance as vigorously as other grievances constituted discrimination against the applicant based on creed.

Failure to Negotiate Paid Discretionary Leave

75I must also dismiss the applicant’s claim that the union infringed his rights under the Code by failing to negotiate paid discretionary leave into the collective agreement, which leave could have been accessed by him to cover his absences on his religious holy days.

76The applicant submits that that the collective agreement between his union and employer is discriminatory because it does not provide for paid discretionary or special leave which could be used to take religious holy days off with pay. The applicant contends that, as a signatory to the collective agreement, the union is liable for infringing his rights under the Code. In support of his position, he relies upon the Supreme Court’s decision in Renaud, supra, which states that a union can breach its accommodation duty “by signing a collective agreement that contains a discriminatory provision.”

77I agree with the applicant that the Court in Renaud found that a union may become a party to discrimination when it negotiates a collective agreement provision (or otherwise participates in the formulation of a work rule) which has a discriminatory effect on employees. However, the applicant in this case does not allege that the collective agreement contains a discriminatory provision. He alleges that the collective agreement lacks a particular beneficial provision. These are not two ways of saying the same thing. I do not read Renaud as saying that a union’s failure (or inability) to negotiate a given benefit into the collective agreement is discriminatory.

78The applicant is essentially arguing that the union’s failure to act (by negotiating a particular type of benefit into the collective agreement) is discriminatory. As the Tribunal held in Traversy and Arias, supra, in order to establish that the union’s failure to act in this way infringed his rights under the Code, the applicant would have to establish that the failure to act was based on discriminatory factors. There are no facts alleged in this case which if true would allow the Tribunal to conclude that the union’s failure to negotiate a contractual provision for discretionary or special paid leave was based on the applicant’s creed or any other prohibited ground so as to give rise to a finding of discrimination.

79For the above reasons, the applicant’s claim in Tribunal File 2008-00609-I that the union infringed his rights under the Code is dismissed.

Whether Attendance Recognition Program Discriminates against Applicant on basis of Creed (Tribunal File 2008-00490-I)

80The issue in this Application is whether the employer discriminated against the applicant on the basis of creed by counting his absences on the High Sabbaths against him when determining whether the applicant was entitled to recognition for perfect attendance under its Attendance Recognition Program.

81The employer denies that its Attendance Recognition Program discriminates against the applicant on the basis of creed. It submits that the program distinguishes among employees not on the basis of creed or any other prohibited ground, but on the basis of attendance at work. Specifically, the employer submits that the program is based on the distinction between scheduled and unscheduled shifts. Whereas absence from work on an “unscheduled” shift does not operate against the employee so as to exclude him/her from perfect attendance, absence on a “scheduled” shift does, the employer says. The employer argues that because recognition under the program is dependent upon working all scheduled shifts, it is essentially an earned entitlement based on attendance at work. The respondent employer submits that it does not infringe the Code to deny bonuses to employees based on their non-attendance at work and relies upon the Ontario Court of Appeal’s decision in Orillia Soldiers in support of this proposition.

82The applicant submits that, according to the definition of “perfect work attendance” in the Attendance Recognition Program, only “unauthorized and unapproved shift absences, lateness, and leaving work area will disqualify an individual hourly associate from attaining a perfect work attendance record.” The applicant submits that by agreeing to allow him to take the High Sabbaths off work, the employer authorized and approved his absence on those days. However, by counting his absences from work on the High Sabbaths against him for the purposes of the Attendance Recognition Program, the employer is essentially treating such absences as “unauthorized and unapproved”. The applicant submits that this is factually incorrect and moreover discriminates against him on the basis of creed.

83As for the employer’s position that the Attendance Recognition Program is based on the distinction between “scheduled” and “unscheduled” shifts, the applicant says that this begs the question why the employer has “scheduled” him to work on days it has agreed that he does not have to work because of his religious beliefs.

84The applicant submits (and the employer agrees) that the employer records him as “unscheduled” to work on the weekly Sabbaths (i.e. two Friday evening shifts he misses in every four-week shift rotation). This means that the applicant’s absences on those shifts do not count against him for the purposes of the Attendance Recognition Program. By contrast, the employer records the applicant as being “scheduled” to work on the High Sabbaths, even though he is entitled to be off on those days. The applicant submits that there ought not to be any difference in the way his absences on the weekly Sabbaths and the High Sabbaths are treated by the employer for the purpose of the Attendance Recognition Program. He submits that, like his absences on the weekly Sabbaths, his absences on the High Sabbaths ought to be treated as absences from “unscheduled” shifts. If that were the case, the applicant would not be excluded from attaining perfect attendance because of his religious beliefs, he submits.

Prima Facie Case of Discrimination

85As always in cases under the Code, the applicant bears the onus of establishing a prima facie case of discrimination under the Code. In order to make out a prima facie case of discrimination under the Code, the applicant must establish either that the respondent treated him in a disadvantageous manner because of his creed (s. 5) or that a requirement, qualification or factor which appears to be neutral on its face has an adverse effect on him because of his creed (s.11).

86As noted above, the employer relies on the decision in Orillia Soldiers in support of its argument that its Attendance Recognition Program treats employees differently based on their attendance at work, not their creed, and therefore does not infringe the Code.

87I agree with the employer to this extent: Orillia Soldiers stands for the proposition that distinguishing among employees on the basis of work performed does not constitute direct discrimination within the meaning of s.5 of the Code. In that case, the Ontario Court of Appeal found that the hospital did not directly discriminate against nurses who were off work because of disability by contributing less to the cost of their benefits than nurses actively employed by the hospital because the distinction was based on work, and not on a prohibited ground. Orillia Soldiers, supra, at para. 27.

88However, the Court found that differential treatment based on work performed may constitute adverse effect discrimination within the meaning of s.11 of the Code where the reason no work is performed is membership in a group identified by a prohibited ground of discrimination:

In my view, it is possible to find that the neutral rule in this case has a discriminatory effect within the meaning of s. 11(1). To repeat, the neutral rule may be stated as follows: the employer contributes toward premium coverage of participating eligible nurses in the active employ of the hospital. This rule has the effect of requiring the group of employees identified by the prohibited ground of discrimination to assume the burden of paying the entire contributions for benefits if they wish to maintain coverage. Admittedly, these employees are treated no differently than other employees on unpaid leave of absence, the difference is that these employees are adversely affected by the rule because of their disability. The issue then is whether the employers are entitled to the BFOQ justification in s. 11(1)(b). Orillia Soldiers, supra, at para 53.

89Applying the above reasoning to the facts of the case at hand, I find that even if the manner in which the employer has applied the Attendance Recognition Program to the applicant does not directly discriminate against him, it does have an adverse effect on him based on his creed within the meaning of s.11 of the Code.

90It is well-established that an employment rule, though honestly made for sound economic and business reasons, may nevertheless be discriminatory if it adversely affects a person because of his or her creed (or other prohibited ground): Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 18 (Simpsons-Sears).

91The Supreme Court of Canada’s decision in Chambly and a number of cases have found that a policy which means that an employee cannot observe his religious holy days without losing pay has a discriminatory effect on the employee on the basis of creed: Chambly, supra, at para. 18; Tratnyek, supra, at para 53.

92Although the applicant in this case is at risk of losing a perfect attendance bonus as opposed to one or more days’ wages, insofar as the bonus is a form of financial compensation, I do not see a principled basis not to apply the reasoning in Chambly to the facts of this case.

93In my view, the applicant in this case is clearly adversely affected on the basis of his creed by the facially neutral requirement that employees attend on all days for which they are “scheduled” to work in order to attain perfect work attendance and the corresponding bonuses under the Attendance Recognition Program.

94All of the parties acknowledge that the applicant’s religious beliefs prevent him from working on the High Sabbaths. When the High Sabbaths fall on what would otherwise be a scheduled work day for the applicant, the employer gives him the day off but continues to record the day as a “scheduled” work day for the applicant. The applicant is therefore unable to work all of his “scheduled” work days during the quarter in which the High Sabbath occurs. As a result, he is excluded from recognition for perfect attendance and from the corresponding bonus.

95Insofar as the applicant’s religious absences are counted against him so as to disqualify him from attaining perfect attendance under the Attendance Recognition Program, it is clear that the program – or the manner in which it is applied by the employer – has an adverse effect on the applicant based on his creed.

96Accordingly, I find that the employer’s requirement that the applicant attend work on all scheduled days in order to attain perfect attendance and the corresponding bonuses coupled with the employer’s characterization of the applicant’s absences on the High Sabbaths as absences on scheduled work days is prima facie discriminatory against the applicant on the basis of creed within the meaning of s. 11 of the Code.

97However, that does not end the matter. The employer may still avoid a finding that it has infringed the applicant’s rights under the Code by demonstrating that the manner in which it has applied its Attendance Recognition Program to the applicant is reasonable and bona fide, which requires the employer to establish that it fulfilled its duty to accommodate the applicant’s religious needs up to the point of undue hardship: s.11(1)(a) and s.11(2).

Duty to Accommodate

98The accommodation sought by the applicant in this case is to have the days where he must be absent because of the High Sabbaths recorded by the employer as “unscheduled” days. If the applicant were accommodated in this manner, he would be able to attain perfect work attendance and the corresponding bonuses under the Attendance Recognition Program while still adhering to the tenets of his faith. Once again, this is because the employer does not count an employee’s absence from an “unscheduled” shift against him when calculating perfect work attendance.

99The problem in this case, says the applicant, is that the employer treats the High Sabbaths as “scheduled” days of work. This is despite the fact that the employer has approved and authorized his absence on the High Sabbaths as an accommodation of the applicant’s religious needs.

100The applicant points out that the employer already treats his absence on the weekly Sabbaths as absence from an “unscheduled” shift such that it does not count against him under the Attendance Recognition Program. The applicant submits that this occurs on two out of every 20 shifts he would otherwise be scheduled to work (i.e. the two Friday evening shifts which arise in every four-week shift rotation.) He submits that it would be very easy for the employer to do the same thing on the few additional days per year he is unable to work because a High Sabbath falls on what would otherwise be a working day for the applicant.

101As noted above, in Chambly, supra, the Court found that the duty to accommodate required the employer to allow Jewish teachers to access paid discretionary leave available under the applicable collective agreement to cover their “valid” religious absences. What I take from that decision is that where there is a ready mechanism by which an employee’s Code-related needs might be accommodated, the duty to accommodate compels that the employer to make that mechanism available to the employee, unless, I suppose, the employee is suitably accommodated in some other way. See also O.P.S.E.U. (Kimmel/Leaf) v. Ontario (Ministry of Government Services (1991) 1991 CanLII 13475 (ON GSB), 21 LAC 4th 129.

102In my view, the respondent employer’s discretionary power to designate the shifts which the applicant is unable to work because of his creed as “unscheduled” may very well be such a ready mechanism by which the applicant’s religious needs might be accommodated. If so, it might well be the sort of thing which the employer is required to do in order to accommodate the applicant up to the point of undue hardship.

103The employer acknowledges that the operation of the Attendance Recognition Program is within its sole discretion. This discretion was exercised when the employer decided to designate the two weekly Sabbaths the applicant takes off work in every four-week period as “unscheduled”. In a given calendar year, this must result in the employer designating approximately 20 shifts per year as “unscheduled”. The employer did not make any submissions as to why it could not or should not have to accommodate the applicant by similarly designating the few additional shifts the applicant must miss because of the annual High Sabbaths as “unscheduled”.

104Ultimately, however, it is not necessary for me to determine whether the employer could have or should have accommodated the applicant by designating the High Sabbaths as “unscheduled” in order to conclude that the employer infringed the applicant’s rights under the Code in the circumstances of this case.

105Once a prima facie case of adverse effect discrimination has been made out by the applicant, the employer bears the onus of establishing that it fulfilled its duty to accommodate the applicant up to the point of undue hardship, failing which it will be found to have infringed the Code: Simpson-Sears, supra, at para. 29.

106In this case, the employer does not contend that the applicant’s religious needs in relation to the Attendance Recognition Program could not have been accommodated without undue hardship, nor does it allege any facts in that regard. There is no allegation that the employer tried to accommodate the applicant’s religious needs in relation to its Attendance Recognition Program, although it knew or ought to have known that designating the applicant’s absences on the High Sabbaths as absences from “scheduled” shifts had a disadvantageous effect on the applicant on the basis of his creed. In the result, and even assuming all of the employer’s allegations and submissions to be true, there is no basis upon which I might conclude that the employer fulfilled its duty to accommodate the applicant’s religious needs in relation to the Attendance Recognition Program. The respondent employer has not established that it is entitled to avail of the defence contained in s.11(1)(a) of the Code, and I must therefore conclude that it has infringed the applicant’s right to be free from discrimination with respect to employment on the basis of creed.

Conclusion

107In sum, I find that the employer’s requirement that the applicant attend work on all scheduled days in order to attain perfect work attendance combined with the employer’s designation of the applicant’s absences on the High Sabbaths as absences on “scheduled” days had an adverse effect on the applicant on the basis of creed and constituted constructive discrimination within the meaning of s. 11 of the Code. This gave rise to a duty on the part of the employer to accommodate the applicant to the point of undue hardship by attempting to find a way for him to observe his religious holy days without losing financial compensation, including the bonuses for perfect work attendance; and by implementing such accommodative measures, if and when identified, up to the point of undue hardship.

108The employer has not shown that the applicant’s religious needs could not have been accommodated without undue hardship and has therefore failed to establish that the “requirement, factor or consideration” which adversely affected the applicant because of his creed was reasonable and bona fide within the meaning of the exception contained in s. 11(1)(a) of the Code. Accordingly, I find that the respondent employer has infringed the applicant’s right to be free from discrimination on the basis of creed pursuant to s. 11 of the Code.

109Having found that the employer infringed the applicant’s rights under the Code in this manner, I now turn to the issue of remedy.

REMEDY

110Section 45.2 of the Code establishes the Tribunal’s remedial authority in this case:

s.45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) May direct a person to do anything with respect to future practices; and

(b) May be made even if no order under that paragraph was requested.

111The Tribunal has broad discretion to award remedies which it considers appropriate in the circumstances and which advance the remedial purposes of the Code: Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 80.

Monetary Compensation

Injury to Dignity, Feelings and Self-respect

112When discrimination is found to have occurred, an award of monetary compensation under s.45.2(1) of the Code recognizes that the applicant’s right to be free from discrimination has intrinsic value and compensates the applicant for the loss of that right as well as intangible losses due to injury to dignity, feelings and self-respect.

113In making an award of monetary compensation to remedy a breach of the Code, the Tribunal should consider the following factors: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness, frequency and duration of the offensive treatment. Sanford v. Koop, 2005 HRTO 53; ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.); and Arunachalam v. Best Buy Canada, 2010 HRTO 1880.

114The applicant in this case seeks $20,000 as monetary compensation for the injury to his dignity, feelings and self-respect. The applicant submits that having his absences on the High Sabbaths counted against him under the employer’s Attendance Recognition Program made him feel like an “outcast” and a “second class citizen”. The applicant submits that he felt angry, frustrated and stressed by his exclusion from the program; and that he has had difficulty eating and sleeping as a result of the employer’s actions.

115The respondent employer submits that in the event the Tribunal finds that it has infringed the applicant’s rights under the Code, it ought not to be required to pay any monetary compensation to the applicant because the applicant did not suffer any financial loss because of the respondent’s actions. Alternatively, in the event that the Tribunal sees fit to order monetary compensation for the applicant, the respondent employer submits that the applicant ought to be awarded no more than $500.

116In the circumstances of this case, I find $2000 to be an appropriate amount to award the applicant as monetary compensation for the loss of his right to be free from discrimination and the injury to his dignity, feelings and self-respect.

117On the one hand, I have no trouble accepting that having his absences on the High Sabbaths counted against him for the purposes of the Attendance Recognition Program caused the applicant a significant degree of emotional upset. I also accept that being excluded from the program in this way because of his religious beliefs caused the applicant to feel marginalized in the workplace.

118On the other hand, in the circumstances of this case, there are a number of factors which, in my view, weigh against ordering the sort of compensation sought by the applicant, or a greater amount than I have found to be appropriate.

119First, the fact is that the employer’s infringement of the applicant’s rights had no practical consequences for the applicant – at least not in respect of the quarters complained of in the Application. The applicant would have been disqualified from attaining perfect work attendance during the last quarter of 2007 and the first two quarters of 2008 based on his non-religious absences and lateness during those quarters, whether the employer had counted the applicant’s religious absences against him or not. The applicant did attain perfect work attendance during the third quarter of 2008 and received the corresponding bonus for that period.

120Moreover, and although I have no doubt that the applicant was understandably upset that his religious absences on the High Sabbaths were counted against his “perfect work attendance,” I am not persuaded that the situation was quite as dire as the applicant contends. I do not agree, for example, that by posting a list of the names of employees who attained perfect work attendance each quarter (always, the employer submits, a minority of the eligible employees), the employer “solidly sanctioned” anti-Semitic behaviour. On the contrary, the facts show that the employer went a long way towards accommodating the applicant’s religious needs in the context of the overall employment relationship by giving him time off for religious observance; by changing his schedule to allow him to observe his weekly Sabbaths; by offering him makeup opportunities for the time he missed because of his weekly Sabbaths; and by recording the weekly Sabbaths as “unscheduled” so that the applicant’s absence on those days did not count against him for the purposes of the Attendance Recognition Program. In my view, the fact that the employer made considerable efforts to accommodate the applicant’s religious needs with respect to his employment serves to reduce both the seriousness of the offensive conduct and its impact on the applicant.

121I am also mindful of the fact that in describing how upset he was by the employer respondent’s actions, the applicant was describing not only those actions which I have found infringed the Code, but also those actions which did not (i.e. the refusal of paid religious leave). An appropriate award of monetary compensation must be tailored to the injury the applicant experienced because of the infringement of his rights under the Code; and not the respondent’s other actions, which though upsetting for the applicant, do not entitle him to a remedy under the Code.

122As for the applicant’s submission that a significant award of monetary compensation is warranted in this case in order to get “the message” across to the respondent employer, in my view, that is not an appropriate factor for me to consider in determining the monetary compensation to be paid to the applicant. The purpose of monetary compensation is to compensate the person whose rights have been infringed, and not to punish the respondent. In my view, ordering the employer to pay the applicant monetary compensation in an amount aimed at deterring it from future breaches of the Code would not be in keeping with the remedial focus of the Code.

Loss of Perfect Work Attendance Bonuses

123The applicant also seeks monetary compensation for any perfect work attendance bonuses which he lost out on because of his creed.

124However, and as noted above, at the hearing, the applicant did not dispute that he was late or absent for non-religious reasons on one or more occasions during the last quarter of 2007 and the first two quarters of 2008, which would have disqualified him from attaining perfect attendance during those quarters, even if his absences on the High Sabbaths were not counted against him. The parties agreed that the applicant attained perfect attendance during the third quarter of 2008 and that he received the bonus for that quarter. The applicant also submitted at the hearing that he received the perfect attendance bonus for the last quarter of 2008, notwithstanding that he was absent for one day to observe a High Sabbath during that quarter. (The employer did not concede that the applicant received the bonus during the last quarter of 2008.)

125The applicant did not indicate that there were any other quarters during which he would have qualified for the perfect attendance bonus, but for his absence on one or more High Sabbaths.

126In all of the circumstances, I lack a sufficient basis upon which to conclude that the applicant lost out on any perfect attendance bonuses because of his creed. I therefore decline to grant this remedial request.

Orders for Future Compliance

127Pursuant to s. 45.2(1) of the Code, the Tribunal has the authority to make an Order directing any party to the Application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. Moreover, the Tribunal may make such an Order even if not requested by the parties.

Training

128By way of remedy, the applicant seeks an Order that all of the employees of the respondent employer be required to undergo training regarding the Code as it pertains to employment. In the circumstances of this case, I am not persuaded that such an Order is warranted in order to promote future compliance with the Code; and I decline to make such an Order.

Audit Future Draws for Cash Prizes

129In the event that he qualifies to enter any future draws for cash prizes under the Attendance Recognition Program, the applicant seeks an Order that he be entitled to “audit” such draws to ensure that his name is included in the draw; and that any such draws be done in the applicant’s presence.

130It is clear from this request that the applicant has a certain amount of mistrust for his employer. While it might be prudent for the employer to take steps to attempt to address the applicant’s misgivings in this regard, I am not persuaded that the requested Order is warranted to promote future compliance with the Code in the circumstances of this case.

131I have found that the employer’s Attendance Recognition Program had a discriminatory effect on the applicant on the basis of his creed; and the employer failed to establish that it fulfilled its duty to accommodate the applicant’s needs in relation to the program up to the point of undue hardship. This is not a basis, however, for me to conclude that the employer is likely to deal with the applicant in a dishonest manner by underhandedly removing his name from prize draws which he is qualified to enter in the future. Accordingly, I decline to make this Order.

Accommodation of Religious Beliefs Under Attendance Recognition Program

132Although it was not specifically requested, in the circumstances of this case, I find it appropriate to direct the employer to review and revise its Attendance Recognition Program, and/or the manner in which it is applied, up to the point of undue hardship, so as to remove the discriminatory effect of the program on employees, including the applicant, whose religious beliefs require them to be absent from work. In effect, this is a direction to the employer to fulfill its duty under the Code to accommodate the applicant’s and similarly situated employees’ religious needs up to the point of undue hardship. The employer must comply with this Order immediately.

133I am fortified in my view that this is an appropriate remedial order in the circumstances of this case by the Supreme Court of Canada’s statement in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), (1999), 176 D.L.R. (4th) 1 (SCC) (“Meiorin”), at para. 68, as cited in Tratnyek, supra, at para. 28-9:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. Courts and tribunals must bear this in mind when confronted with a claim of employment-related discrimination … To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that does not allow for such accommodation may be only slightly different from the existing standards but it is a different standard nonetheless. (Emphasis in original.)

ORDER

134The Tribunal orders as follows:

1. The respondent employer, Automodular Corporation, shall pay the applicant the sum of $2,000 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect as well as infringement of his inherent right to be free from discrimination on the basis of creed.

2. Post-judgment interest is payable on any part of this amount not paid within 14 days of the date of this Decision in accordance with the Courts of Justice Act.

3. The respondent employer, Automodular Corporation, will immediately review and revise its Attendance Management Program and/or the manner in which it is applied, up to the point of undue hardship, so as to remove the discriminatory effect of the program on employees, including the applicant, whose religious beliefs require them to be absent from work.