Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on December 2, 2021 within the category "Accommodating religion". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
A postal worker was suspended for wearing a blessed ring at work which the employer had prohibited for safety purposes. She grieved, claiming a failure to accommodate on the grounds of religion. The arbitrator ruled that the ring was not a religious item, and upheld the suspension.
Canada Post Corporation v Canadian Union of Postal Workers, 2020 CanLII 86105 (CA LA), November 2, 2020 (Arbitrator, Allen Ponak)
The grievor was a postal clerk with more than 30 years of seniority.
She worked at a Canada Post sorting and distribution facility near the Toronto airport known as VISTA.
She wore an engagement ring while working which had been blessed by her parish priest.
While acknowledging that the rings were not a religious item, she maintained that it symbolized her commitment to her fiancée under the eyes of God, and wearing it was protected by her religious rights.
The employer’s safety rules at the plant prohibited employees from working on mechanized equipment while wearing a ring. This prohibition included the conveyer belt where the grievor worked.
Prior to August 2018, employees were allowed to wear rings under their gloves. However, in August 2018, a new manager tightened the application of safety rules, and re-introduced a complete prohibition on rings, even under work gloves. The manager sought to ensure compliance through display posters and safety meetings.
On December 14, 2018, the grievor met twice with the manager. At both meetings, she was expressly told that she would not be permitted to work unless she removed her ring. The grievor refused to remove the ring and was sent home for the remainder of her shift.
The grievor advised management that forcing her to remove her ring would amount to religious discrimination.
The manager asked the grievor to complete an accommodation form, which she refused to do.
During her next three shifts, when the grievor reported to work, her supervisor advised her that again, unless she removed her ring, she would not be permitted to work. The grievor refused to remove her ring and was suspended each time for the full shift.
Following these initial suspensions, the grievor had not worked up until the release of the arbitration award.
The union brought a grievance challenging the rule, claiming religious discrimination and reprisal.
Because the safety rules relied upon by the employer to suspend the grievor had been unilaterally introduced into the workplace, Arbitrator Allen Ponak used the prevailing KVP framework to judge whether the employer’s safely rule was enforceable or not.¹
The KVP framework is a widely accepted arbitral ruling dealing with unilateral employer workplace rules and policies, and has been endorsed by the Supreme Court of Canada.²
The KVP framework uses the following six factors to assess the enforceability of unilateral employer rules in the workplace:
- The rule must not be inconsistent with the collective agreement;
- The rule must not be unreasonable;
- The rule must be clear and unequivocal;
- The rule must be brought to the attention of the employee affected before the company can act on it;
- The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge; and
- Such rule should have been consistently enforced by the company from the time it was introduced.
Employing the first factor, Arbitrator Ponak found that the rule prohibiting the wearing of rings while working on mechanized equipment at the plant location was consistent with the collective agreement. The agreement required the employer to prevent and correct any situation that might endanger the health and safety of employees. Employees must observe the rules and reasonable practices with respect to health and safety.
Respecting the second factor, the arbitrator determined that the rule prohibiting rings on mechanized equipment was not unreasonable. The consequences of a ring becoming entangled in a conveyor belt are potentially grave. Employees were allowed to wear rings under their gloves, but at the time of the grievor’s suspensions, rings were not permitted to be worn under gloves. While an amended version of a rule may be better and even more reasonable than the previous rule, it does not make the previous no-ring rule unreasonable.
Turning to the “clear and unequivocal rule” factor, the arbitrator accepted the evidence of the employer that there were posters at the plant, since at least the summer of 2018, which clearly prohibit the wearing of rings while working. Supervisors were instructed to hold safety meetings about the tighter application of the rules. Thus, the no-ring rule was clear and unequivocal by the time it was applied to the grievor in December 2018.
There was no dispute that the no-ring rule had been clearly brought to the attention of the grievor, and that the disciplinarily consequences of failing to obey the rule were expressly explained.
As for the final KVP requirement, the arbitrator held that, prior to the summer of 2018, the employer had failed to enforce the rule consistently. However, at the relevant period in this case – December 2018 – the employer had taken sufficient steps to tighten the enforcement of the safety rules and ensured that its employees were made aware that rings were no longer permitted to be worn on the work floor, even if worn under gloves.
Respecting the claim that the employer had failed to accommodate the grievor, the evidence revealed that the employer had twice provided the grievor with the opportunity to complete an accommodation form, which she refused to do. With this rejection, the employer was not required to provide an alternative assignment.
As for the claim of religious discrimination based on the grievor’s designation of her ring as being blessed, Arbitrator Ponak concluded:
Simply put, an engagement ring, while undoubtedly meaningful to the Grievor, is not a religious item which the Grievor’s religion requires her to wear. This is true even if the ring has been blessed by a priest. Indeed, the Grievor, in her own statement, conceded that she recognized that the ring “is not a religious item.” An engagement ring is not akin to a kara, a silver bangle that religious Sikhs are required to wear, or tzitzit, knotted ritual fringes, that observant Jews must wear as tenets of their respective religions. These items have been recognized as protected religious items by tribunals and courts. Engagement rings have not been recognized as a religious requirement of the Christian faith. As such, the Grievor’s claim for religious accommodation must be denied. [Emphasis added]
Finally, the arbitrator ruled that there was no evidence that the employer had retaliated against the grievor or singled her out in any way.
According, the grievances were dismissed.
Implications for Employers
Employers are obligated by law to provide workplace religious accommodations where employees can establish that their faith requires the employee to wear a particular item, such as a hijab, a kippa or a turban. However, if a genuine safety issue arises because wearing the religious item at work might pose a real risk of harm, then an employer would be required to investigate every possible accommodation to enable the employee to remain employed productively. As part of this obligation, employers must ensure safety rules are reasonable, consistent with the collective agreement, unequivocal and clear, communicated to employees, and consistently applied to guarantee their enforcement.
Implications for Unions
Unions should advise their members that, when they seek a religious accommodation at work, they must demonstrate that their faith requires the particular practice to be honoured as an integral part of their pious observance. As well, employees asking for a religious accommodation must cooperate with their employers; this includes providing the necessary information for the employer to understand what is required by the employee’s faith. As well, unions should be well-versed on the KVP principles when assessing the validity of unilateral workplace rules and policies.
¹ KVP Co. Ltd. and Lumber & Sawmill Workers’ Union, Local 2537 (1965), 16 LAC 73 (Robinson).
² CEP, Local 30 v Irving Pulp and Paper Ltd, 2013 SCC 34, at para. 24.