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Ontario Public Service Employees Union, Local 560 v. Seneca College, 2014 ONLA 39592 (CanLII) RE' Grievance of Harvey Kaduri     

Summary:

Harvey Kaduri has been a full-time teacher in the Seneca College IT department since 2000. When Mr. Kaduri initially started working, he informed the College that he also taught computer classes at a Jewish high school known as CHAT. These classes at CHAT were taught in the morning and Mr. Kaduri asked the College to accommodate this morning teaching schedule by only scheduling his classes at the College after 1:00pm. As a member of the Jewish faith, Mr. Kaduri believed he was required to give back to his community and that his chosen way of giving back was through teaching at CHAT. Up until this grievance, the College agreed to these accommodations. In 2012 the College informed its teachers that it was implementing a new automated scheduling system. Under this new automated scheduling system the College could no longer commit to accommodating the grievor’s request to only be scheduled in the afternoon. The college indicated that in the academic year 2014-2015 that Mr. Kaduri’s request would not be accommodated. In this arbitration, it was decided that the College was not obligated to accommodate Mr. Kaduri’s “choice” in relation to how he chose to give back to his community. It was decided that Mr. Kaduri was not being prevented from pursuing other avenues in relation to giving back to his community. Emphasizing this point, it was stated that “in this case it is not the requirement to give back that is being infringed but the particular choice of how to fulfill it.”  In addition, it was stated that the scheduling process was designed to apply to all teachers, therefore not specifically targeting Mr. Kaduri.

Question(s) to be Determined:

1.    Did Seneca College discriminate against the grievor, Harvey Kaduri on the basis of creed contrary to s. 5 of the Ontario Human Rights Code (the HRC) and contrary to article 4.01 of the collective agreement between the parties?

Findings:

1.    Did Seneca College discriminate against the grievor, Harvey Kaduri on the basis of creed contrary to s. 5 of the Ontario Human Rights Code (the HRC) and contrary to article 4.01 of the collective agreement between the parties?

NO

Reasoning:

1.    In this case the issue was not whether or not Mr. Kaduri has a “sincerely held belief” that he is required by faith “to give back to his community,” this assertion was accepted by the arbitrator. What was an issue, is the position that Mr. Kaduri’s sincerely held belief required him to teach at CHAT.

Referring to previous case law it was stated, “From a subjective view, it is clear that if the grievor has a sincere religious belief that he must give back to his community, then that belief must be recognized as worthy of protection. But as was stated in Commission Scolaire, the question of whether that belief has been infringed must be assessed on the basis of an objective analysis. We cannot see from the statement of particulars how the scheduling process at issue, applied to all employees by the College can objectively be considered as an infringement of the grievor’s requirement to give back to his community.”

Further emphasizing this point, the arbitrator drew distinctions between this case and Amselem. “This is not at all a case like Amselem. In Amselem, the claimants asserted that they were required by their religious belief to build the Succah on their balconies. It was not sufficient to have a common succah built in the courtyard of the building because according to their belief the succah had to be built within the boundaries of their own dwelling. In other words, they were not choosing as between two viable options – building their own succah on their balcony – or building a common succah on the courtyard. Their belief required them to build a succah within their dwelling and it was this requirement that was being infringed.”