GSB# 2017-0232

UNION# 2017-5112-0065

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Preyma)

Union

• and -

The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

FOR THE EMPLOYER

Ed Holmes

Ryder Wright Blair & Holmes LLP

Counsel

Sean White

Treasury Board Secretariat

Labour Practice Group

Counsel

HEARING

September 18, 2018

Decision

1Mr. Preyma grieves that the Employer denied his request for leave under Article 49.1 of the Collective Agreement in a manner contrary to, among others things, that Article, Article 3 of the Agreement and the Ontario Human Rights Code (the Code).

2The parties agreed to proceed by way of the procedures set out in Article 22.16 of the agreement. I heard evidence and arguments from each party on September 18, 2018. The Employer requested that my decision include written reasons addressing the arguments of the parties. The parties agreed that I might take somewhat longer than the deadline foreseen in Article 22.16 to render a decision. I have set out brief reasons below, seeking to do justice to the relatively complex arguments presented by the parties consistently with the procedures that they have chosen.

Evidence

3Mr. Preyma has been employed by the Ministry of Community Safety and Correctional Services since 1998. He currently works at the Toronto South Detention Centre.

4On November 29, 2016 Mr. Preyma requested, via the appropriate forms, a leave of absence under Article 49 to observe a religious holiday on December 23 and 24, 2016.

5On December 1, 2016 Ms. Vicki Robertson responded on behalf of the Employer by email, asking with respect to which religious holiday observance Mr. Preyma was seeking leave, and noting that “the recognized religious holidays are based on the OPS List of Religious Holy Days”.

6The Ontario Public Service (OPS) has a policy of allowing up to two days of paid special and compassionate leave for observance of religious holy days to employees with access to such leave. The Employer applies this policy under the terms of Article 49. To assist in the administration of this policy the Treasury Board Secretariat prepares a List of Religious Holy Days (the “OPS List”). The List is based on information obtained consultations with religious leaders in many different faith traditions. It is lengthy, but the Employer admits that it “does not cover every single holiday”.

7The ensuing exchanges between Mr. Preyma and the Employer took place by email.

8Mr. Preyma responded on December 14, 2016 by stating the “[t]he holidays that I observe are The Festival of Lights and the Nativity of our Lord”.

9Ms. Robertson followed up on December 21, 2016 by requesting “clarification from you and your religious leaders with regard to your request for religious holidays as they fall under two different religions”. The next day Mr. Preyma responded by asking what clarification the Employer needed.

10Mr. Preyma took December 23 and 24 off work to celebrate the holidays in question with his family, using vacation credits.

11On January 18, 2017 Ms. Robertson responded to Mr. Preyma’s December 22, 2016 message that “[w]e need confirmation from your church as to what religion you are following as you have requested religious holidays under two different religions”.

12Mr. Preyma responded that morning. His message referenced the Employer’s policy on preventing discrimination by creed, noting that a person’s creed belief needs only to be sincerely held. He asked for a decision on whether his leave request would be approved based on the information that he had already provided.

13The next day Ms. Sarah Harries-Jones responded on behalf of the Employer, indicating that the clarification that the Employer had requested remained outstanding, again referring Mr. Preyma to the OPS calendar listing “all the recognized religious holidays”.

14Mr. Preyma responded on February 1, 2017, stating, among other things, that he is a Ukrainian Christian, and that the OPS List was not accurate.

15On February 10, 2017 Ms. Harries-Jones wrote to Mr. Preyma to deny his request on the grounds that days that Mr. Preyma had requested “do no meet the criteria for approval”, and noting that the further documentation that the Committee had requested regarding those days had not been received.

16Mr. Preyma is a Ukrainian Christian. His family includes members of both the Orthodox and Catholic Christian faiths, and his practice has long been to observe holy days within both faiths. He sincerely believes that his faith requires him to celebrate the two holidays in question. Mr. Preyma indicates that he has always celebrated and gathered with his family on the two holy days in question. In the past, Mr. Preyma had requested leave under Article 49 to observe religious holidays, including the Nativity of Our Lord, when he was scheduled to work on such days. The Union presented documents indicating that those requests had been approved. In the past Mr. Preyma had been given leave under Article 49 with respect to religious holidays not on the List, following some explanation to Employer representatives of those holidays.

17The Union presented evidence that the holiday more commonly known as the Festival of Lights is also known and celebrated within the Orthodox Christian faith as the Forefeast of the Nativity of Our Lord, and is followed by a holy day known within that faith as the Eve of the Nativity of Our Lord. That evidence indicates that in 2016 the Forefeast of the Nativity of Our Lord took place on December 23, and the Eve of the Nativity of Our Lord Took place on December 24. The Union indicates that this information was easily obtainable through an Internet search. The Employer states that this evidence had not been provided to it prior to the day of the hearing. The Union admits this.

18Other than by the application for leave that is the subject of the grievance, Mr. Preyma did seek to use any leave days under Article 49 in 2016.

The Arguments of the Parties

19The Union takes the position that respect for Mr. Preyma’s creed as a Ukrainian Christian entails respect for his sincerely held beliefs concerning the observances required by his faith. The Employer, says the Union, does not get to judge the reasonableness or correctness of Mr. Preyma’s sincerely held beliefs. Union submits that Mr. Preyma’s request was denied simply because the holidays that he requested were not found on the OPS List. It notes that he had been granted days on and off the List for a number of years, and that the Employer’s practice indicates that employees could be granted up to 2 days for the purpose of special leave for observance of religious holidays even if they were not found on the List. The Union contends that the Employer’s insistence that any holidays in respect of which special leave granted under Article 49 is granted be found on the List directly discriminates against Mr. Preyma because holidays that his faith requires him to observe are not found on that List. The Union says further that the Employer’s decision to grant leave under Article 49 only in respect of days on the List adversely impacted Mr. Preyma as a Ukrainian Christian, by requiring him to use vacation leave that persons whose religious holidays were on the List did not have to use in order to observe their religious holidays. Accordingly, submits the Union, the Employer must be found to have breached Article 3 and the Code unless it can show that accommodating Mr. Preyma’s religious observance by removing the differential treatment of it would pose an undue hardship for the Employer. The Union contends that the Employer has not demonstrated that granting Mr. Preyma’s leave request would pose any undue hardship for it. In fact, the Union submits, the Employer could not establish undue hardship because had Mr. Preyma’s requested holidays been on the List, the Employer would have granted them. Therefore, the Union concludes, the Employer’s denial of Mr. Preyma’s request was contrary to Article 3 of the Collective Agreement. The Union refers me to the following authorities: Re Humber College and OPSEU, 1987 CanLII 8730 (ON LA), 31 L.A.C. (3d) 266 (Briggs); Re The Crown in Right of Ontario (Ministry of Government Services) and OPSEU (Kimmel/Leaf grievances) 1991 CanLII 13475 (ON GSB), [1991] O.G.S.B.A. No. 1, 21 L.A.C. (4th) 129 (Kaplan); Re The Crown in Right of Ontario (Ministry of Community and Social Services) and OPSEU (Tratnyek grievance) 1997 CanLII 24961 (ON GSB), 65 L.A.C. (4th) 345 9 (Gorsky); Ontario Human Rights Commission, Policy on creed and the accommodation of religious observances (1996, revised 2009); Ontario Human Rights Commission, Policy on preventing discrimination based on creed (2015); R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 316; Shaw v. Phipps, 2012 ONCA 155; Peel Law Association v. Pieters, 2013 ONCA 396; Moore v. Her Majesty in Right of the Province of British Columbia [2012] 2 S.C.R. 360; Donald v. The Board of Education of the City of Hamilton, 1945 CanLII 117 (ON CA), [1945] 3 D.L.R. 424; OPSEU v. Forer, (1985) 1985 CanLII 2257 (ON CA), 12 O.A.C. 1.

20The Employer submits that this case is not about accommodation, but about the circumstances and criteria for accessing paid leave according to the policy that the Employer has established to administer leave under Article 49. The Employer says that it does not have to provide paid leave under that Article. According to its terms, the employer contends, special and compassionate leave is discretionary. There is nothing in the Collective Agreement or the case law, submits the Employer, that requires it to provide paid leave. It maintains that its only obligation under Article 49 was to act reasonably, and that it did so in relying upon the OPS List in the absence of sufficient information from Mr. Preyma. The Employer refers me to the following decisions: Limestone District School Board and The Elementary Teachers’ Federation of Ontario, Limestone Local, 2017 CanLII 79129 (Kaplan); Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Mailloux grievance) GSB # 0087/88 (Picher); Re The Crown in Right of Ontario (Ministry of the Attorney General) and OPSEU (Duret grievance), (2014) GSB # 2014-2026 (Dissanayake); Re the Crown in Right of Ontario (Ministry of Education) and OPSEU (Barrett grievance), (2017) GSB # 2016-2306 (Johnston); Re Vancouver Island Regional Library and CUPE, Local 401, [2010] B.C.C.A.A.A. No. 108 (Lanyon); Re The Crown in Right of Ontario (Ministry of Health and Long-Term Care) and OPSEU (Thurman grievance), [2002] O.G.S.B.A. No. 25 (Johnston); Re The Crown in Right of Ontario and OPSEU (Evangelista grievance), (2015) GSB# 2014-3159 (Dissanayake); Re Toronto District School Board and CUPE, Local 4400, (2015) 259 L.A.C. (4th) 278 (Davie).

21In response to the Union’s contention that its actions discriminated against Mr. Preyma on the basis of creed, the Employer makes four arguments.

22First, the Employer submits that its decision did not adversely impact Mr. Preyma because there is no entitlement to special leave under Article 49. Rather, the Employer contends, it is a discretionary benefit.

23Second, while it does not question the sincerity of Mr. Preyma’s belief that he needed to be away from work on the days in question, the Employer does question whether his beliefs in fact required his absence from the workplace. The Employer found the information that Mr. Preyma provided to be contradictory, in that he was requesting leave with respect to two different holidays that, according to the OPS List, appeared to be associated with different faiths, and in that one of those holidays appeared to fall on a different date from that requested, again according to the List. It notes that one of the holidays, according to the Union’s recently submitted evidence, appears to be an evening celebration and questions whether Mr. Preyma needed to be away during the workday to celebrate that holiday. The Employer also maintains that for Mr. Preyma, the alternative to drawing down on vacation days would have been some sort of scheduling change. While this might have been inconvenient for him, submits the Employer, it would not adversely impact him. While a scheduling change was not discussed, the Employer says that he could have asked for it and he is well aware that the Employer is able to be flexible, given another situation in which the Employer has accommodated him.

24Third, the Employer says that Mr. Preyma failed to provide sufficient information to the Employer concerning the holidays that he sought to observe, despite the Employer’s requests for such information. The Employer found the information that Mr. Preyma provided to the contradictory, leaving it in doubt. Mr. Preyma, submits the Employer, was not forthcoming when asked for further information. The Employer points out that the two holidays that he listed– the Festival of Lights and the Nativity of our Lord did not correspond to holy days associated with his religious faith on the OPS List. Accordingly, says the Employer, it made further inquiries. Mr. Preyma declined to provide further information. Nothing indicated to it, the Employer maintains, that either of these holidays required Mr. Preyma’s absence in order to celebrate them. While the Union provided two documents purporting to explain the holidays in question at the hearing, this information was not available to the Employer at the time that it made its decision. The Employer submits that it had to make its decision on the basis of the information before it, which was not sufficient in its view to justify special leave. The Employer submits that the Employer engaged in an individualized inquiry, and that the grievor’s lack of cooperation in that inquiry was at his own peril.

25Finally, the Employer submits that even if Mr. Preyma was adversely impacted, reasonable accommodation of his creed does not require leave with pay under Article 49. To hold otherwise, the Employer maintains, would take would take the discretion out of this provision of the agreement, creating a wide opening that was not in the contemplation of parties or negotiated into the collective agreement.

26The Union responds that if the Employer required further information to assess Mr. Preyma’s request it was readily available on the Internet. The Union also maintains that most of the case law to which the Employer directs my attention is simply about employer exercise of discretion and the information required in that context, while this case is also about discrimination on the basis of grounds protected in Article 3 and the Code.

Decision

27Article 49.1 provides that:

A Deputy Minister or his or her designee may grant an employee leave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds.

28Article 3.1 provides that “[t]here shall be no discrimination practiced by reason of… creed”. Section 5 of the Code similarly provides that “[e]very person has a right to equal treatment with respect to employment without discrimination because of… creed.”

29Mr. Preyma describes himself as a Ukrainian Christian who observes tenets of both the Orthodox and Catholic Ukrainian Christian faith. The Employer does not question this.

30To prove discrimination against Mr. Preyma on the basis of creed contrary to Article 3 and the Code, the Union need only show that Mr. Preyma was (1) subjected to adverse treatment and (2) that his creed was a factor in the adverse treatment: Peters, supra, at para 126; Moore, supra at para 33. If the Union establishes this, the Employer may justify its actions as non-discriminatory if it can demonstrate that it could not accommodate Mr. Preyma’s creed without undue hardship.

31There is no disagreement that Mr. Preyma sincerely believed that as a Ukrainian Christian he should observe the two holy days in question. He took time off work on December 23 and 24, 2016 in order to do so. The Employer allowed him to be absent from regularly scheduled work on those days, but only because he used available vacation leave. These were two days of vacation leave that he would not have been required to use had his request for special leave been approved.

32The jurisprudence of this Board has long recognized that making employees choose between a day’s wages, whether in the form of unpaid leave or use of vacation days, and the celebration of one of their holy days impacts them adversely: Kimmel/Leaf, supra at paragraph 102; Tratnyek, supra, at 21-33.

33The Employer maintains that Mr. Preyma was not adversely impacted because he was simply denied a discretionary benefit. But whether the benefit available under Article 49 can be characterized as discretionary is irrelevant to determining whether, for the purposes of Article 3 and the Code, the Employer’s actions adversely impacted Mr. Preyma. The question is simply whether, because the Employer denied special leave to Mr. Preyma, he was required to use two days of vacation leave that would otherwise have been available to him to celebrate the holy days in question.

34The Employer questioned whether Mr. Preyma’s religious beliefs in fact required his absence from the workplace. While not questioning the sincerity of his beliefs, the Employer pointed out that the religious holidays that Mr. Preyma wished to celebrate appeared, according to the OPS List, to be associated with different faiths than his own. The Employer’s concern thus appears to be that his sincere beliefs were not connected to any discernable events within his stated faith tradition. The Employer referred me to Toronto Board of Education, supra, in which Arbitrator Davie concluded at paragraphs 54 to 60 that the term “Holy Day” used in the relevant collective agreement referred to a discernable event within a faith.

35The Union produced evidence, which the Employer does not challenge, that the holy days in question were events within the religious calendar of the Orthodox Christian Church. I accept that they were discernable events within Mr. Preyma’s faith as a Ukrainian Christian. I therefore do not need to consider whether Mr. Preyma could have sought leave or other accommodation in respect of holy days falling outside of any religious calendar.

36The Employer also argued that one of the holy days, the Festival of Lights, appeared to involve an evening celebration, and again without doubting the sincerity of Mr. Preyma’s beliefs, questioned whether he needed to be absent from work that day to observe it. The evidence before me is not clear on this point except in this respect: that Mr. Preyma sincerely believed that he should observe the holy day during the time that he had been scheduled to work. I am prepared to conclude in the circumstances of this case that Mr. Preyma’s sincere belief that he should observe a holy day within the religious calendar of his faith as a Ukrainian Christian brings his observance of that day within the protections of Article 3 and the Code. The Ontario Human Rights Commission has long taken the view that the Code protects personal religious beliefs, practices and observances, even if they are not essential elements of creed, provided they are sincerely held: Policy on creed and the accommodation of religious observances, supra, at pages 3-4. This understanding of creed is consistent with the statement of the Supreme Court of Canada in Big M Drug Mart, supra, at para 136 that “[w]ith the [Charter of Rights and Freedoms] it has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be”.

37The Employer also contended that Mr. Preyma’s beliefs did not require his absence on the days in question because he could have sought a scheduling change so as to work on other days. But it was the Employer that set Mr. Preyma’s schedule. In response, he applied for special leave. At this stage, it was not his responsibility to propose something else. The Employer might have responded by offering a shift schedule change. There is authority for the proposition that shift changes can reasonably accommodate religious observance: Toronto Board of Education, supra, at paras 50 and 51; Limestone District School Board, supra. But it did not, so I need not consider this matter further.

38I turn to the question of whether Mr. Preyma’s creed was a factor in the adverse treatment.

39Creed is almost by definition a factor in a forced choice between a day’s wages and celebrating a person’s holy day. But the Employer maintains, in effect, that it forced no such choice upon Mr. Preyma. According to the Employer, Mr. Preyma simply failed to provide enough information about the basis for his leave request. As a result, the Employer submits, it decided reasonably on the basis of the information before it to deny his request. On this view, the choice between celebrating the holy days in question and keeping two days of vacation arose only because of Mr. Preyma’s actions, and not because of those of the Employer, and thus Mr. Preyma’s creed was not a factor in his treatment.

40Mr. Preyma gave little information in support of his initial leave request, but in response to Employer questions he did provide clarification. On December 14, 2016 he stated that “[t]he holidays that I observe are The Festival of Lights and the Nativity of our Lord”. On January 18 he said to the Employer in a further email that a person’s creed belief needs only to be sincerely held to qualify for protection against discrimination, indicating by implication that his were. On February 1, 2017, he stated, again in response to an Employer request for information that he is a Ukrainian Christian. Together these statements indicate that he sought to observe holy days that he referred to as the “Festival of Lights” and the “Nativity of Our Lord” on the basis of his sincere beliefs as a Ukrainian Christian. All of this indicated that those two occasions are holy days connected to his faith as a Ukrainian Christian.

41It also nonetheless left room for further questions. For example, the Employer could have asked Mr. Preyma for more information about the connection between those holy days and Ukrainian Christianity, and why Mr. Preyma chose to observe them.

42Instead of asking about this, however, the Employer required confirmation from his church as to what religion he was following. Ms. Harries-Jones said to Mr. Preyma: “[w]e need confirmation from your church as to what religion you are following as you have requested religious holidays under two different religions”. Mr. Preyma responded that a person’s creed belief needs only to be sincerely held, and referenced the Employer’s policy on preventing discrimination by creed. Ms. Harries-Jones insisted upon the Employer’s information request, and referred to the OPS List as identifying “all the recognized religious holidays”. Mr. Preyma responded that that the List was not accurate, and informed her that he was a Ukrainian Christian. Ms. Harries-Jones then wrote to Mr. Preyma to deny his request on the grounds that the days that Mr. Preyma had requested “do no meet the criteria for approval”, noting that the further documentation requested regarding those days had not been received.

43This line of inquiry by the Employer (1) presumed that any possible relationship between the holy days with respect to which Mr. Preyma had requested leave and any religious creed had already been identified in the OPS List; and (2) effectively made the only way to rebut that presumption a confirmation from the religious leaders of Mr. Preyma’s church as to what religion he was following.

44This requirement was not necessary. Mr. Preyma could have been asked why his beliefs required observance of the two holy days. He volunteered in response to Employer information requests that he was a Ukrainian Christian, information that the Employer accepts. At the hearing the Union supplied additional information linking the holidays in question to the Orthodox Christian calendar. The Employer did not challenge this information, and might have elicited or otherwise obtained it earlier.

45Furthermore, confirmation of which religion Mr. Preyma was observing would not in any event have been sufficient to resolve whether his creed required his absence to observe the holidays in question. The OPS List did not associate those holidays with Mr. Preyma’s faith tradition. Meanwhile, Mr. Preyma was saying that the List was not accurate. The connection between the holidays and his creed could only be investigated further by seeking further information about how his beliefs related to the religious calendar of his faith tradition as a Ukrainian Christian. The insistence upon confirmation of his faith from his religious leaders was extraneous. Such confirmation would not and could not have resolved the matter.

46I do not doubt that the List enables many requests to be approved without the time and expense of a more detailed individualized inquiry and is thus of substantial benefit to both the Employer and its employees. But neither the List, nor an insistence that an employee applying for leave obtain from his or her religious leaders confirmation of his or her creed can substitute for individualized inquiry about requests for leave to observe holy days that are not on the List. The effect of the Employer’s course of action was to place unnecessary and extraneous conditions on Mr. Preyma’s access to special leave under Article 49, and to forego inquiring about the personal beliefs constituting his creed, simply because the List did not reflect the holy days that he sought to observe. As a result, his application for leave was denied, and he was disadvantaged in relation to those whose religious observances are on the List. Mr. Preyma’s creed was thus a factor in the decision to deny his leave request.

47The Employer does not claim that the cost of granting employees whose holy days are not on the List special leave on equal terms with employees whose holy days are on the List would pose an undue hardship. Rather, the Employer contends that allowing claims like Mr. Preyma’s would impose an undue hardship because it would effectively render the benefit under Article 49 a non-discretionary one. I do not agree. The Employer has chosen to make special leave under Article 49 available to those seeking to observe up to two days of religious holidays per year. Whether the Employer is required to do so was not fully argued, and is best left for another day. This decision is simply concerned with the administration of that policy consistently with Article 3 and the Code. I can see no reason why engaging in an individualized inquiry providing applicants for special leave whose religious holy days do not appear on the List with an unobstructed opportunity to demonstrate that observance of those days is connected to their creed would create undue hardship.

48Had this been done, Mr. Preyma would have had access to special leave on an equal footing with an employee seeking to observe holy days that are on the List. The Union established that Mr. Preyma had a sincere belief that he should observe the holy days in question, and that they are discrete events in the religious calendar of his faith. He should therefore be put in the same position as an employee seeking on the basis of sincere belief to observe holy days connected to his or her religious faith that are on the List. Accordingly, I will direct that Mr. Preyma be credited with two days of vacation leave or be provided with equivalent compensation.

49If it were necessary I would also find that, for the reasons outlined above, the Employer did not meet its obligations in exercising its discretion under Article 49, in that the Employer tied its decision to extraneous considerations and made insufficient efforts to investigate the merits of Mr. Preyma’s claim: see Mailloux, supra, at pages 16 – 17.

Disposition

50The grievance is allowed. I direct that Mr. Preyma be credited with two days of vacation leave or be provided with equivalent compensation. I remain seized with respect to implementation of this award.