Human Rights Office

Human Rights Office
Human Rights Office

Koroll v. Automodular Corp. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2011 HRTO 774 (CanLII)

Summary:

Mr. Koroll identifies as a practicing Christian as defined by the Living Church of God. As part of his religion, Mr. Koroll observes weekly Sabbaths from sunset on Friday to sunset on Saturday and various other High Sabbath days. At the time of the alleged discrimination Mr. Koroll was an employee at Automodular Corportaion. In an effort to accommodate Mr. Koroll’s weekly and High Sabbath’s, Automodular Corporation provided the applicant with time off without pay. Mr. Koroll believes that the Code requires the employer to provide him two or three days of paid religious leave per year to observe his religious holy days. In addition, Mr. Koroll alleges that his trade union, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), is also liable for the infringement of his right to be free from discrimination based on creed. He believes that the union is liable for failing to negotiate a provision for paid discretionary leave into the collective agreement. Further, Mr. Koroll alleges that the employer’s Attendance Recognition Program discriminates against him on the basis of creed.  As part of the Attendance Recognition Program, employees who have perfect attendance receive quarterly and annual bonuses. Mr. Koroll alleges that he has been excluded from receiving these bonuses due to his religious beliefs. In this case it was found that Automodular Corporation does not have a Code mandated duty to provide Mr. Koroll with paid time-off in order to observe his religious holy days. It was also found that the union, CAW-Canada, did not infringe upon Mr. Koroll’s rights under the Code by failing to negotiate paid discretionary leave into the collective agreement. Relating to the final allegation in this case, it was found that the employer’s Attendance Recognition Program, discriminated against Mr. Koroll on the basis of creed.

Question(s) to be Determined:

1.    Does Automodular Corporation have a duty to provide the applicant, Mr. Koroll, time off with pay for religious observance as a form of accommodation?



2.    Did the respondent union in the case, National Automobile, Aerospace, Transportation and General Workers Union of Canada, infringe upon Mr. Koroll’s rights under the Code?



3.    Does the Attendance Recognition Program, administered by Automodular Corporation, discriminate against Mr. Koroll on the basis of Creed?

Findings:

1.    Does Automodular Corporation have a duty to provide the applicant, Mr. Koroll time off with pay for religious observance as a form of accommodation?



NO



2.    Did the respondent union in the case, National Automobile, Aerospace, Transportation and General Workers Union of Canada, infringe upon Mr. Koroll’s rights under the Code?



NO



3.    Does the Attendance Recognition Program, administered by Automodular Corporation, discriminate against Mr. Koroll on the basis of Creed?



YES

Reasoning:

1.    In this case it was decided that Automodular Corporation had a duty to accommodate Mr. Koroll. This duty however, did not mean that Automodular Corporation had to provide Mr. Koroll with paid time-off to observe his weekly and High Sabbath holy days. It was stated that “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” (para 60).



Further discussing the duty to accommodate it was stated that “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” (para 62).



2.    In this case Mr. Koroll alleged that the union infringed upon his rights under the Code by failing to pursue the applicant’s grievance and failing to negotiate paid discretionary leave into the collective agreement. In relation to the grievance it was stated that “In 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” (para 73).



In relation to failure to negotiate paid discretionary leave into the collective agreement it was stated that “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” (para 78).



3.    Citing previous case law it was stated that “It 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] 2 S.C.R. 536 at para. 18 (Simpsons-Sears)” (para 90).  In this case it was decided that although the Attendance Recognition Program was implemented for honest economic and business reasons it adversely impacted Mr. Koroll because of his creed.



“In 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” (para 106).

Remedies:

In this case financial damages were awarded to Mr. Koroll for injury to dignity, feelings and self-respect as well as infringement of his inherent right to be free from discrimination on the basis of creed. In addition, Automodular Corporation was ordered to immediately review its Attendance Recognition Program.

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 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.