Having recently read an article published by CBC Canada and written by Stuart Rudner: Time to give all employees the right to honour their own religious holidays, says employment lawyer I would suggest that it is also time to give all employers the right to provide their goods and services without penalizing them for doing so.
Mr. Rudner asks the question, “Why do most workers get two Christian holidays off without question (whether they observe them or not), but if someone wants to observe a different religious holiday they have to ask permission, and often have to make up the time?” To this question, he provides a valid argument with regards to the nature in which holidays are currently being observed in law. He goes on to point out the inequitable manner in which a variety of religious beliefs find themselves disadvantaged because those who enjoy the Christian based holidays of Christmas and Easter are able to do so without losing vacation days, while others are forced to utilize some form of income protection to ensure they are paid for the days recognized as holy days in their own religion. There is some validity to this line of thinking.
He also points out within his article that a business owner was fined $10,000 for making the decision to remain open on Good Friday; however his article does not contemplate the inequitable nature of the laws that allow these penalties to occur to business owners. Currently in most jurisdictions, business owners are forced to close their doors, pay wages for no work received, or pay a premium in wages should they wish to remain open. So I ask, should a business owner be penalized for trying to offer the public economic choices in the market? Is there a reason why a business must pay premiums to its staff in recognition of the individual religious affiliations of its employees? Do we create an inequitable society when the financial rewards to employees based on these religious days also penalize those businesses who simply wish to provide choice for people to decide how and when they wish to spend their money and time?
I agree with Mr. Rudner, that perhaps it is time to consider the evolution of our society and contemplate the vary nature of why these systems exist. I would agree with Mr. Rudner that consideration of how these systems continue to perpetuate the inequities that our diverse population is facing. The precedents set in our legal framework provide reason for business owners to be weary of the personal beliefs held by its employees to ensure the business is not in violation of human rights. This same notion has unintended consequences of forcing businesses to wages for days employees are not in the workplace and no productivity is present. So I turn to Mr. Rudner’s statement that concludes this article, “Everyone should have equal access to time off for religious observance”, and I ask, is the goal to ensure people are able to observe those days that are important to them, or to be paid a premium for those days?
IF the goal is to ensure an equitable way people are to have time to observe days that are important to them, then should a business be penalized through premiums in wages to support these only some individual’s decisions in which the business has no say? Would people be content to simply be able to observe the same number of days as anyone else in a year without pay? My last question as a result of Mr. Rudner’s article is; is it constitutional for laws to penalize business owners for providing economic choices for people who wish to work and/or purchase goods on a day that has religious significance only to some?
Contemplate for a moment under the assumption that the goal is to ensure an equitable solution for all in order to participate in customs related to days that are important to the individual regardless of “race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, sexual orientation, residency, marital status or citizenship” as stated in the Canadian Charter of Rights and Freedoms. Let us also consider from the perspective of business owners who wish to offer the means for customers to engage with their businesses and schedule staff based on the availability of labour. In doing so we can view this dilemma in a truly equitable fashion. Business owners could decide what their hours of operation would be based on economic conditions, rather than ideology or dogmatic practices embedded in our legal constructs. Choice is provided to those of us who have chosen to live, work and play in a democratic society such as Canada.
Our governments should not denounce the holidays that have been established as part of our heritage, but instead consider the colonial nature in which these holidays are being enforced through law. What if, the law simply stated that a specified number of days were to be made available to employees for the purpose of observing events important to them without pay? There would be no advantage or disadvantage to any group of people. It would be equal and equitable from all perspectives. Imagine, if as a society we were able to choose days as individuals for which we inform our employers we will be observing or utilizing in a manner expressed through non-conformity away from the workplace with the condition that these days must be used by all. We can celebrate holidays that are important to Canada or whatever jurisdiction we reside in and still have the choice to choose which of these holidays we will observe based on our individual right to do so and without penalty to our employer. With such a concept everyone could rejoice in the notion that they are able to celebrate these important moments with like minded individuals without fear of reprisal from their employer. Their employment is not jeopardized and our multi-cultural heritage and identities are preserved.
From a business owner perspective, let us contemplate this possibility. With the option of opening your business on any day and at any time without being penalized through wage premiums the business would be subject to the economic factors of supply and demand. Through the demand from customers and the supply of labour a business could determine if it was feasible to remain open. This coincides with Mr. Rudner’s comment, “there is no “one size fits all” approach. If a factory employs 500 workers and 495 want Christmas Day off, it is not feasible to remain open on that holiday, just so that a handful of employees can come to work and take a different day off.” A business could examine its available labour force and make the choice to close for that day or not, thus this becoming a regular day off for the entire workforce or perhaps only for some. In the same example provided by Mr. Rudner, it is possible that depending on the industry in which and the position that those 5 employees hold in the organization, perhaps coming to work would be feasible were it not for the penalization of the employer by allowing it. It could be an opportunity for maintenance workers to tend to a matter without the remaining staff in the building as a barrier, or perhaps an opportunity for an office worker to catch up on paperwork without distraction. In Manitoba, where a significant number of employees are working within the retail industry, perhaps it is an opportunity for business owners to fill a need on a day that has no significant value to others whether it be by offering their products or paying wages. Contemplate the values set out in the Canadian Charter of Rights and Freedoms and consider some thoughts expressed by the Supreme Court of Canada via R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, 1985.
“In an earlier time, when people believed in the collective responsibility of the community toward some deity, the enforcement of religious conformity may have been a legitimate object of government, but since the Charter, it is no longer legitimate. With the Charter, it has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be and it is not for the state to dictate otherwise.”
There is also further commentary regarding such issues cited in other legal cases such as R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713, 1986 CanLII 12 (SCC)
“It is beyond doubt that days such as Sundays, Christmas and Easter were celebrated as holidays in Canada historically for religious reasons. The celebration of these holidays has continued to the present partly because of continuing, though diminished, religious observances of the largest denominations of the Christian faith, partly because of statutory enforcement under, inter alia, the now unconstitutional Lord’s Day Act, and partly because of the combined effect of social inertia and the perceived need for people to have days away from work or school in common with family, friends and other members of the community. These, in my view, are the social facts which explain the selection by individuals, businesses, school boards, and others of particular days as holidays”
Furthermore the writer goes on to state:
“A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the employment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in any way contrary to his beliefs or his conscience.”
By upholding the Charter that is embedded in our Constitution, are we not still ensuring our Canadian values and heritage are being celebrated? Even if legislation prescribed specific days of pause that provided for families to spend time together which were not tied to religious observance, would the goal still be reached without the requirement to pay premiums in labour costs? Mr. Rudner, perhaps the reason this matter remains one that is contentious in nature because society has lost perspective on the original reason these prescribed days of rest exist. With modern day diversity within our communities, perhaps it is time we allow the economic freedom governed through the supply and demand of labour to coincide with fewer obstructions so society is able to celebrate our Canadian values in our own individual manner. In doing so, we maintain the values that preserve and enhance the multicultural heritage of Canadians without the imposition of colonial style sanctions.
References:
Time to give all employees the right to honour their own religious holidays, says employment lawyer: https://www.cbc.ca/news/canada/manitoba/opinion-manitoba-religious-holidays-store-closings-1.5158840
The Constitution Act, 1982: https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec27_smooth
Guide to the Canadian Charter of Rights and Freedoms: https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html
R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, 1985 CanLII 69 (SCC): https://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html
R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713, 1986 CanLII 12 (SCC): https://www.canlii.org/en/ca/scc/doc/1986/1986canlii12/1986canlii12.html?searchUrlHash=AAAAAQAxcmVsaWdpb3VzIGhvbGlkYXlzIGNoYXJ0ZXIgb2YgcmlnaHRzIGFuZCBmcmVlZG9tcwAAAAAB&resultIndex=4
Colin Finlay, CPHR 