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Queen's University
 

MacEachern v Saint Francis of Xavier University

What happens when occupational requirements conflict with religious requirements? 

Facts          

  • When a boiler room engineer at Saint Francis Xavier became a practicing member of the Wide World Church of God, he notified the university that he would not be able to work on the Sabbath (Friday night to Saturday night) as well as on eight other high holy days. 
  • Over the winter and spring months, the complainant was able to manage the Sabbath/Shift conflicts by swapping shifts with his four coworkers: three full-time operators and one relief operator. However, in the summer months, when people were taking their vacations, it became increasingly difficult to find accommodation.
  • He told HR that he would be willing to transfer to another position within the university, but was not willing to take a significant cut in salary (no more than 5% to 10%) nor was he willing to work as a janitor, a laundry worker, a housekeeper, or a serviceman. 
  • In August 1988, he failed to report to work even though he had not arrange accommodation. As a result, a coworker who had just finished a 24-hour shift, was forced to do another 24 hour shift. This coworker filed a grievance and tension grew amongst the operators. 
  •  Days after the incident, the University advertised for a relief stationary operator but received no applications. At a meeting held a few weeks after the incident, the stationary operators met with University Counsel and union representatives and the Personnel Officer to discuss an accommodation plan which included: a review of the shift schedule, a continued effort to such for a relief operator, and a continued effort to find alternative employment for MacEachern. The University refused to implement the Union’s idea of “penciling in” the existing relief officer to cover the Sabbath Shifts. On September 6th, the complainant was given a directive that he did not have the authority to “unilaterally change [his] shift schedule or refuse to report to work”. He was to cease swapping shifts and to go through the Senior Engineer, who was in charge of the schedule from then on. In the meantime, a draft schedule was sent out to the operators for their comments.  Feedback was negative; all operators opposed the irregularity of the new schedule and the fact that they would have to work more weekends and, in certain cases, fewer shifts (earning therefore less money) in order to accommodate MacEachern. Based on this feedback, the University decided not to impose the new schedule.
  • Over the fall semester, Mr. MacEachern continued to receive accommodation by swapping shifts with his coworkers. When, on November 25th, he failed to report to work for the second time (forcing another coworker to work a double shift, the University decided to suspend his employment. On Dec 5th, the Union counselled him to accept a deal whereby he would willingly resign if no solution had been reached by July 1, 1989. In this time period, no one applied for the position of relief operator and MacEachern rejected or was not qualified for the jobs that became available on campus. When he refused to resign on July 1, the University fired him. Months later, his former job was advertised by the University. He applied but did not receive an interview. MacEachern v St. Francis Xavier University (1994), 24 CHRR D/226 (NS Bd. Inq)

Questions

  1. Were MacEachern’s requests for accommodation bona fide?

  2. Did the University and the Union respondents provide reasonable accommodation of Mr. MacEachern’s religious beliefs to the point of undue hardship?

  3. Did the University and the Union respondents provide reasonable accommodation of Mr. MacEachern’s religious beliefs to the point of undue hardship?

  4. Was it impossible to accommodate MacEachern to the point of undue hardship?

Rulings

  1. Yes

  2. Yes

  3. Yes

  4. Yes

Reasoning

1. “Sabbath observance is a fundamental tenet of the worldwide church of God. It is a time of worshipping God, spending time with family, church service and church socializing. It is church doctrine that Church Members not work on the Sabbath except in emergencies. In non-emergency or non-essential service situations, an adherent of the faith would endeavor to wind down his activities so as to have completed them by the time the Sabbath commenced with the setting of the sun.” (16

2. The University Accommodated Mr MacEachern by 

  • Allowing him to swap shifts until such time as he created an unreasonable safety risk by not showing up to work
  • Advertizing for a relief operator
  • Trying to find him another position in the university

3. The Union Accommodated Mr. MacEachern by

  • Proposing that the existing relief operator replace him on the Sabbath shift
  • Offering to represent Mr. MacEachern in a grievance    

4. Three factors made it impossible to accommodate Mr. MacEachern:

  • An essential service, the boiler plant, that must be attended at all times. The University had statutory obligations to provide a safe environment for workers. When MacEachern failed to report to work (twice), he put his coworkers at risk. This justified the University’s Sept 6th directive to MacEachern not to “unilaterally change [his] shift schedule or refuse to report to work”. This directive was not discriminatory. The proposed schedule, that the university suggested but then rejected, would have introduced unreasonable safety risks by “creating a greater potential for increased fatigue and stress in a workplace that demands alertness and good judgment”. The failure to implement the schedule was not discriminatory. 
  • A very small workforce with a maximum number of five operators. The University tried, without success, to hire a new relief operator. The commission argued that the University should have hired a new full-time operator. However, it failed to prove that the University, which has a smaller operating budget, could afford to hire a new full-time operator and failed to prove that such an addition would resolve the scheduling conflict entirely without damaging employee morale.The Board found that the Union had offered to “pencil in” the existing relief operator to fill in for the Sabbath shifts, and that the University had justifiably refused to use this accommodation measure; the University proved that this would have resulted in a pay cut of 21% to Mr. MacEachern, who had only agreed to a cut of up to 10%. Even at the hearing, no one (including the Commission and the Complainant) was able to propose a reasonable schedule that would have properly balanced the religious rights of Mr MacEachern and the employee morale issue.
  • A strong preference for all employees to have as many weekends off as possible. Although the Board cautioned that human rights are more important than social rights (the right to have time off on weekends to spend with family/friends), it underscored that employee morale is a factor to be considered when judging the reasonableness of any given accommodation.  In this case, modifications to the 12-hour shift schedule “eroded the regularity and equality of the schedule with respect to numbers of shifts worker, number of days and nights worked and numbers of weekends worked”.  In particular, in order to accommodate the complainant, the other operators would have had to work more nights and weekends and, moreover, some of them would have even ended up working fewer shifts resulting in less pay. He said:  “I find that approximately thirty weekends worked by four employees over 18 months constitutes evidence of hardship with further hardship being experienced by two operators who worked double shifts when Mr MacEachern did not report for his scheduled shift due to Sabbath adherence.” 

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000