Posts tagged employment law

A teachers’ strike means, unfortunately, that we are living in interesting times

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Tomorrow is the start of a three-day strike that will impact nearly every person in British Columbia.  Roughly 41,000 teachers will withdraw their services following a recent vote of members of the British Columbia Teachers’ Federation (see the BCTF’s press release here). 

Janet Steffenhagen of the Vancouver Sun reported that most public schools in the province will be closed tomorrow, as school authorities urge parents to make alternative arrangements for the supervision of their children.  With the strike having been announced on Thursday, parents will have had a couple of days to prepare for this, but school closures are never easy for anyone to deal with.  Many, many businesses and other organizations rely on employees, managers and contractors with children in public schools, and not everyone has a grandparent, friend or spouse with the flexibility to stay home and watch the kids.

In other words, this is gonna sting. 

So, how did we get here?!  Well, that really depends who you ask, but here are the basics of the story:

  • For the past decade or so, the BCTF and the provincial government – represented here by the British Columbia Public School Employers’ Association - have locked horns over a variety of issues, including teachers’ wages and class size and composition.
  • The BCTF and the BCPSEA have been in high-level negotiation sessions without substantial progress for the past year, and the BCTF has been in a heightened state of protest since September. 
  • Last week, the British Columbia Labour Relations Board ruled that the BCTF could strike for three days without breaking the BCLRB decision designating education as an essential service, provided the BCTF gave the BCPSEA at least two days’ notice and the teachers did not picket.
  • Later that day, George Abbott, the Minister of Education, introduced Bill 22 (BC Legislature), which is intended to end the dispute and return the parties to mediation with particular references for the mediator.  The BCTF was horrified with Bill 22.

Which brings us to tomorrow.  Here is the Vancouver Sun editorial board’s take on the situation, clearly siding with the government. 

The BCTF has beat out the government on many of the legal issues connected to the tit-for-tat over the years.  Most recently, the British Columbia Supreme Court ruled (see here) that certain provisions of the School Act (BC Laws) dealing with class size that were introduced by the government to remove them from the bargaining table were unconstitutional.

The challenge for both sides may be to try to win the battle and the war.  The BCTF may win in the streets, the legislature or the courtroom but lose in the dining rooms – and for the months and years that follow, that may make all the difference.

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Tis the season to accommodate traditional employees of minority religions and cultures

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Labour Day – the first Monday in September – is widely recognized in Canada as summer’s swan song.  Some people stretch out their three-day weekend into a four-or five-day weekend, but ultimately the days and weeks after Labour Day are generally about getting things back in gear after sunny and relatively relaxed work days of summer.   School starts.  Businesses pick up.  Days get shorter and colder.  Vacation season dies down.

But some Canadians reserve their vacation time for that particular window of time a couple of weeks after Labour Day, when the country’s calendar heads in the opposite direction and refocuses on getting back to business.  Christian Canadians, or Canadians with cultural connections to traditionally Christian holidays, rarely need to worry about taking off time to participate in their religion or culture.  In British Columbia, statutory holidays (BC Government) overlap with the holidays of Western Christians.

For other Canadians, though, that’s a real concern: how am I going to celebrate fixed, weekday calendar events without compromising my business or employment obligations?  Despite the increasing diversity of Canadian society, that same issue still needs to be acknowledged and respected by employers, even in the educational community: how should educational institutions deal with employees who don’t mind working on Christmas but need to take off days at different times of the year for their own cultural or religious holidays?

The central case on this issue in the educational context is Commission scolaire régionale de Chambly v. Bergevin (CanLII), which involved three Jewish teachers employed by a local school board who took a day off to celebrate Yom Kippur (Wikipedia).  The school board had granted them a leave of absence without pay and the teacher’s union sought reimbursement for that amount.  The Supreme Court of Canada ultimately found for the union, and maintained that the school board had a duty to accommodate the needs of the teachers, short of such accommodation resulting in undue hardship (i.e. being unreasonably costly) for the school board.

The high court determined that the calendar of statutory holidays is discriminatory against non-Western Christian employees:

In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect.  Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar.  Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur.  It thus inevitably follows that the effect of the calendar is different for Jewish teachers.  They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work.  In the absence of some accommodation by their employer the Jewish teachers must lose a day’s pay to observe their holy day.

Educational institutions should review Chambly and other decisions when drafting policies related to employees to ensure this issue is dealt with sensitively and in advance of any disputes arising.  Outside of the employment and labour context, schools and universities should provide sufficient measures for students of minority cultures and religions to take their holidays without suffering significant hardship.

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The Duty to Accommodate: Happy to work on Christmas, but not on Yom Kippur

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The culture of Christmas in Canada is pervasive.  It is the highlight of the year for many Canadians, when work ceases for a day and families reunite.  Every provincial government has designated it as a statutory holiday, allowing Western Christians the ability to participate fully in their religious experience without any expectation of professional achievement.

But, for many Canadians, the most important days on the calendar don’t fall out in late December.  They don’t coincide with statutory holidays.  How should educational institutions – as employers of people of varied religious and cultural backgrounds – deal with employees who don’t mind working on Christmas but need to take off days at different times of year for their own religious holidays?

The main case on this issue is Commission scolaire régionale de Chambly v. Bergevin.  Three Jewish teachers employed by a local school board took a day off to celebrate Yom Kippur.  The school board had granted them a leave of absence without pay and the teacher’s union sought reimbursement for that amount.  The Supreme Court of Canada ultimately found for the union, and maintained that the school board had a duty to accommodate the needs of the teachers, short of such accommodation resulting in undue hardship (i.e. being unreasonably costly) for the school board.

The court acknowledged that the calendar of statutory holidays is discriminatory against non-Western Christian employees:

In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect.  Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar.  Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur.  It thus inevitably follows that the effect of the calendar is different for Jewish teachers.  They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work.  In the absence of some accommodation by their employer the Jewish teachers must lose a day’s pay to observe their holy day.

It’s as simple as this: one group doesn’t have to work on their holidays, the other does.  That’s discriminatory.  The court held that this issue has to be resolved without adverse consequences to non-Western Christian employees.  Logistically and legally, this is often dealt with by scheduling changes.

Educational institutions should review Chambly and similar decisions when drafting policies relating to employees and holidays to ensure that this issue is dealt with in advance with sensitivity to non-Christian groups.

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