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Simple sacrifice: Arbitrator rejects anti-masker’s claim to religious exemption from employer safety rule

Canada Publication January 11, 2022

In Hydro One Inc. v Power Workers Union (O’Reilly), an Ontario arbitrator brought welcome clarity to claims for religious exemptions from COVID-related safety rules. The arbitrator found that the employer had just cause to discipline the grievor for refusing its reasonable requirement to wear a mask while at work, despite the grievor’s religious objection. The grievor was employed as an electrical linesperson performing duties on high-voltage transmission lines.


Background

In response to the COVID-19 pandemic, the employer had adopted reasonable rules for wearing a mask and using other personal protective equipment to prevent the spread among employees. Notwithstanding repeated directives from his employer, the grievor simply refused to wear a mask, claiming that to do so would be contrary to his Catholic religious beliefs.

To support his claim, the grievor provided a letter from his pastor, which confirmed that although the Catholic Church does not teach that there is an intrinsic problem with wearing masks, it was contrary to the grievor’s conscience, which the Church does teach one to obey.

Following discussions with the grievor, the employer decided not to accept his request for accommodation, believing it was not valid. There was also evidence that the grievor had previously worn a mask in other circumstances, such as while riding his motorcycle and during training.

The grievor subsequently returned to work but refused to wear an approved face covering on several occasions, warranting several disciplinary interviews, a time served suspension, and his eventual termination for failure to follow the employer’s COVID-19 safety protocols. While the arbitrator acknowledged that the employer had “bent over backwards” to find a path forward with the grievor, the fact remained that, in most instances, the grievor was required to wear a face covering in many aspects of his job. He simply refused to do so as it was against his own good conscience.

Decision

The arbitrator found that the grievor’s refusal to wear an approved face covering was not a bona fide refusal on the basis of religious belief.

Taking into account evidence of the Catholic Church’s support for mask wearing (inclusive of that provided by the Pope) and of the grievor’s situational use of masks, the arbitrator concluded that his objection was a personal choice not grounded in religious belief. Specifically, the arbitrator stated:

“[the grievor] is entitled to his personal beliefs and opinion, even if they are misguided. However, [the grievor’s] individual right does not trump the collective right of his fellow employees to a safe and healthy workplace.”

As such, the arbitrator found that the employer was not required to accommodate the grievor’s personal preference and had just cause to discipline him for his refusal of its reasonable requirement to wear a mask, a refusal found to be a blatant violation of health and safety rules and insubordination.

The arbitrator gave the grievor 30 days to decide whether he wishes to remain employed by the employer. If he does, he must advise the employer within 30 days of the award of his agreement to wear a mask in situations where necessary and is then to be reinstated with a time served suspension. If he does not, his grievance is to be dismissed.

Consequences for employers

This decision provides welcome clarity for employers seeking to enforce COVID-related safety protocols and administer claims for exceptions based on religious grounds. This is particularly so as the decision carefully distinguishes between individual beliefs, situational beliefs and those of a particular religion.

Finally, the decision speaks to arbitral discretion in assessing an appropriate penalty. Notwithstanding, the grievor’s clear and sustained insubordination in relation to a basic workplace safety requirement, the arbitrator gave him an additional 30 days to weigh his personal beliefs against continued employment.



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