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Queen's University
 

Robbert-Giffard

What is the role of the union when an employee needs a religious accommodation?

Facts

M. Benoît Deschênes was employed as a part-time cook and cook's assistant by the Centre hospitalier Robert-Giffard in 1984. As a member of the World Wide Church of God, he was unable to work Friday night shifts, because a tenet of his faith required him to observe his Sabbath from sundown Friday to sundown Saturday. For ten years, the employer accommodated this religious requirement by letting him go home early on Fridays in exchange for him taking shortened breaks during the week. In 1994, however, he was promoted to a full-time position as cook's assistant. When he advised his employer that he could not work Friday evenings, however, the hospital withdrew its offer and gave the job to another employee, M. Crépeau, who had less seniority but who could fulfill the requirement to work Friday evenings. When Deschênes complained, the employer temporarily withdrew the contract from Crépeau and tried to come up with an workplace accommodation for Deschênes. When Crépeau, backed by his union, threatened to file a grievance, the employer abandoned its efforts to accommodate Deschênes. When faced with the Quebec Human Rights Tribunal, the employer blamed the union, who refused to support its accommodation plan, and the union blamed the employer, whose accommodation plan interfered with the Collective Agreement's requirement that cook's assistants work Friday night shifts.  [Quebec (Comm. des droits de la personne et des droits de la jeunesse) c. Centre Hospitalier Robert-Giffard (1997), 34 C.H.R.R. D/436 (Trib. Que)]

Questions

  1. Did the hospital fulfill its duty to accommodate Deschênes to the point of undue hardship?
  2. Did the union fulfill its duty to accommodate Deschênes to the point of undue hardship?

Answers:

  1. No
  2. No

Reasoning:

  1. The Tribunal referred to the precedent set in Renaud, where the Supreme Court of Canada ruled that the threat of a grievance from an intransigent union does not constitute undue hardship and does not excuse an employer from accommodating an employee. The Tribunal ruled that the accommodation proposed by the employer would have represented only minor financial inconvenience, which is an acceptable price to pay for religious freedom.
  2. The Tribunal referred to the precedent set in Renaud, where the Supreme Court of Canada showed that a union can be found to be discriminatory if it participates in the formulation of a discriminatory work rule (such as the rule that all assistant chefs work Friday nights) and if it impedes the employer in its attempts to implement a reasonable accommodation (such as it did when threatened to file a grievance on behalf of Crépeau based on a narrow interpretation of the Collective Agreement).

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000