H.T. v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067 (CanLII)

The employer of two teenaged siblings has been ordered to pay $26,000 in damages after firing the teens when they took time off for a religious holiday.

The Applicants, H.T. and J.T., who are identified in the decision only by their initials, worked full time for Country Herbs, a vegetable and herb grower and importer. The Applicants are Christian Mennonites who celebrate a religious holiday called Himmilfaurt. Both teens were terminated after not attending work on the holiday.

The employer’s attendance policy stated that two weeks’ notice was required for holidays and 24 hours’ notice for a day off, and that employees were not permitted to take time off on Mondays or Thursdays. The holiday fell on a Thursday, which is the day on which the employer filled orders for the weekend when most customers shop.

Only H.T., the older sibling, was scheduled to work on the holiday. She notified the employer in advance that she would need the day off for religious observances. During the hearing the employer testified that she had told H.T. that there were another 10 employees who would seek to take the day off if she permitted H.T. to take the holiday off, although there was no evidence of any other employee seeking a day off on that particular Thursday. The employer told H.T. that she would either have to work on the holiday during the day or come to work at midnight in order to help complete the orders. Sixteen-year-old H.T.’s mother refused to let her work past 10 p.m., and the employer had previously agreed to the term.

While the Applicants were at church on the holiday, the employer called the Applicants’ mother to ask if H.T. and J.T. were coming to work or were coming in at midnight. The Applicants’ mother replied that they would be doing neither due to the religious holiday. The employer replied that neither H.T. nor J.T. would need to attend work anymore, even though J.T. had not been scheduled to work that day.

Vice-Chair Dawn Kershaw held that the requirement that H.T. work on the holiday or be fired was discriminatory on the basis of H.T.’s creed and a violation of Ontario’s Human Rights Code. Vice-Chair Kershaw held that the employer failed to seriously consider how it could accommodate the Applicants and this failure to engage in a meaningful process resulted in a failure to satisfy the procedural duty to accommodate. Given H.T.’s particular circumstances, including the agreement of the employer that H.T. would not work past 10 p.m. because of her age, H.T.’s concerns about working late at night in a rural setting and the fact that she did not have a means of transportation to get to work at midnight, Vice-Chair Kershaw further held that giving the teenage employee the option of working at midnight was not a reasonable option. It is interesting to note that the Applicants did not claim discrimination on the basis of age, but H.T.’s age was considered when assessing the accommodation offered.

Although she found that the employer had failed to meet the procedural aspect of the duty to accommodate, the Vice-Chair went on to find that there was a lack of evidence with respect to the undue hardship the employer would have suffered in accommodating H.T. Notably, the employer did not provide any evidence of economic losses that would have been associated with giving H.T. the day off. Vice-Chair Kershaw also held that terminating H.T. for missing one day of work undermined the employer’s submission that accommodating her would amount to undue hardship, as after terminating the applicants, the employer was short staffed for weeks but still managed its business and had no evidence of losses.

With respect to J.T., the Vice-Chair held that while he was not scheduled to work, he was fired because of his association with his sister, who had asserted her right not to work on the holiday, and with whom he shared the same religion. Vice-Chair Kershaw found the termination of J.T.’s employment because of his association with H.T. amounted to a breach of J.T.’s Code-protected rights.

Finally, it was held that the employer reprised against H.T. in violation of the Code, as the employer had told employees, including the Applicants, that if they did not come in on the holiday, they could be fired. In addition, the employer’s evidence was that had it not terminated the Applicants’ employment, other employees would feel they did not have to follow the attendance policy in the future.

The employer was ordered to pay H.T. $10,000.00 for injury to her dignity, feelings and self-respect and for reprisal, $1,927.00 for wage loss from May 29 to June 29, 2014, and interest on these amounts. J.T. was awarded $7,500.00 for injury to dignity, feelings and self-respect, but there was no finding of reprisal with respect to his termination. He was also awarded $6,690.00 for wage loss from May 29 to October 30, 2014, and interest on both amounts. The respondent employer was also ordered to ensure that the principals of the organisation take the Ontario Human Rights Commission’s on-line training “Human Rights 101” within 60 days of the Decision, and to post Code cards in central locations throughout the place of business, particularly in the lobby and in areas where the staff takes breaks or has meetings.

This decision provides important guidance to employers with respect to religious accommodation. The case reminds employers that both the procedural and substantive aspects of the duty to accommodate arise when employees seek accommodation for religious observances, and if an employer cannot demonstrate the undue hardship it will suffer by accommodating an absence from work the result may be a finding of discrimination and an accompanying damages award. It should be noted that claiming adherence to a standard “attendance policy” for all employees will not be sufficient to defeat claims of discrimination on the basis of creed. Finally, it is important that reasonable accommodation be offered, as an unreasonable offer of accommodation will not meet the duty to accommodate.