Focus laBouR & eMployMen T laW
labour Board tackles religious-office exemption
Barry Goldman
Arecent case before the Ontario Labour Relations
Board revolved around the ques-
tion of whether inspectors at a
kosher food inspection agency
known as the Kashruth Council
of Canada were employees of the
organization or “holders of reli-
gious office.”
If deemed the latter, they would
be exempt from, among other
things, overtime pay under the
Ontario Employment Standards
Act, which does not apply to those
individuals holding “political, judi-
cial or religious office.” (See Kash-
ruth Council of Canada/Le Conseil
Cacherout du Canada, Applicant
v. Morley Rand and Director of
Employment Standards,
Responding Parties, 1624-10-ES.)
Last November, board vice-
chairman Brian McLean ruled
that the inspectors in this case
were in fact employees and thus
not exempt from overtime pay,
even though they served a reli-
gious purpose in their jobs. The
decision could have wide-ranging
implications for scores of reli-
gious institutions, not to mention
homeless shelters, social-service
agencies, and fundraising groups.
The potential repercussions of
the Rand dispute with the Kash-rush Council of Canada are considerable. McLean ruled that “the
Rands are not exempted from the
Act’s protection by the ‘religious
office holders exemption.’” However, that is not the end of the
matter, as the Rands’ claims for
unpaid wages are still to be heard
on their merits. If those hearings
conclude that the Rands are
entitled to the full amounts
claimed, the financial consequences for the Kashruth Council
may be considerable, and the
potential fallout arising from
claims by other Mashgiachim
could be crippling. It is easy to
envision this ruling having profound consequences for other
organizations, religious and
otherwise. Such organizations
may have wrongly interpreted
the Employment Standards Act
to provide an exemption for individuals who perform religious
duties, but do not hold a religious
“office.” On that one, all we can
say is — stay tuned.
Barry Goldman is a partner at Shib-ley Righton LLP concentrating in
employment law.
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Just: punishment must be proportionate
ever, the employee tendered her
resignation, only to seek a rescission of her resignation on the
ground that it had been made
under duress. Canada Post
refused to accept the rescission.
The arbitrator held that her
choice to resign was a subjective,
calculated decision to avoid further criminal charges. However,
the employee did not have a continuing intent to resign and had
not, in effect, resigned from her
position. Having found that there
was no effective resignation, the
arbitrator held that the evidence
indicated that the employee had
stolen the money, and the
employer therefore had just cause
for dismissal. (Canada Post Corp.
v. APOC (2011), 109 CLAS 47)
Continued from page 19
A ‘flawed’ investigation
The employee was a senior
store manager with 30 years’
service at British Columbia’s
Liquor Distribution Branch
(LDB). She had a “no-nonsense”
approach to management, rou-
tinely swore on the job and was
known as the “Little General.”
Notwithstanding her manage-
ment style, the employee’s per-
formance reviews were excellent
and her disciplinary record rela-
tively clean.
Stuart Rudner is a partner in Miller
Thomson’s labour and employment
law group. Summer law student
Maria Constantine assisted with
this article.
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