While most of the Ontario workforce provides employees with pay for statutory holidays, at times employers make an employment law faux-pas in improperly handling religious observances and holiday conflicts which fall outside of the regular statutory holiday list. This was the main issue in Commission scolaire régionale de Chambly v. Bergevin,  2 S.C.R. 525 (Chambly), Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board 2000 CanLII 16854 (ON CA), and Markovic v. Autocom Manufacturing Ltd.  O.H.R.T.D. No. 62.
Generally in unionized work environments employees are able to have expanded rights regarding religious holiday pay.
Employers must be consistent
In the Court of Appeal’s decision, Chambly, three Jewish teachers employed by a School Board took Yom Kippur off in order to observe the holiday. While the Board approved of the day off, it did not pay the teachers for the amounts they would have made for that day had they not taken it off for the holiday. This was both contradictory to the Board’s previous actions (they had been paid for previous Yom Kippurs), and the collective agreement (which included that teachers should be paid for days off wherein a “good reason” existed). As such, the decision of the Arbitrator (that the teachers should be paid) was upheld.
Ontario (Ministry of Community and Social Services),was a grievance brought forth by a member of the Worldwide Church of God who required eleven days off per year for religious holidays. The grounds for the grievance arose when the employee was denied pay for nine of the eleven days, on the basis that the applicable workplace policy only provided for two paid days off work. The policy contemplated additional days, but they were to be resolved via scheduling changes. When the matter proceeded before the Grievance Settlement Board, it was held that the employee was to be reimbursed for four of the nine days. An appeal by the employer was dismissed by the Divisional Court, but allowed at the Court of Appeal. The Court of Appeal found that although the employer’s policy had a “discriminatory effect”, the employer’s efforts to accommodate satisfied its obligations. The case was distinguished from Chambly in that scheduling changes were not possible in Chambly given the number of days in the school year.
For non-unionized employees there are fewer protections for such issues such as holiday days off. Generally unless there is a policy or contract to the contrary there is no obligation for your employer to pay you for any days which are not worked unless they are standard Public Holidays.
For instance in Markovic, a human rights tribunal case, a Serbian employee who celebrated the Eastern Orthodox Christmas on January 7th encountered a conflict when he took January 7th off work to observe the holiday, for which he was not paid. The employer had but had offered to enforce a two-day’s off policy to resolve any alleged discrimination. The court upheld that as per Chambly, the employer’s existing policies were sufficient and that the two-day amendment was unnecessary. No discrimination had occurred.
Advice for Employers
It is important that your workplace policies reflect all employees’ rights, regardless of religious identity. If you are unsure as to whether a policy may be discriminatory to certain employees, contact Monkhouse Law today.
Advice for Employees
If you have experienced discrimination as a result of a workplace policy, such as compensation for statutory holidays, it’s best to speak with an Employment Lawyer. Contact Monkhouse Law today.