The Complainant was employed by the Respondent at the Whitehorse Correctional Facility. The Complainant is a First Nation person of Tr’ondëk Hwëch’in ancestry. In 1998, the Tr’ondëk Hwëch’in Han Nation was engaged in their final land selections under the Yukon land claim negotiation process. Since the Complainant was the eldest family member, he felt an obligation to personally research and attend the land claim meetings to ensure that the family’s traditional lands were protected. He was also concerned that the federal and territorial government would prioritize third party interests. Due to his concerns, the Complainant felt he had no choice but to attend the land claim meetings. As such, he did not attend work in order to attend the meetings and after, did not attend work due to the stress he felt during the negotiation process. In total, he did not attend work for 31 days.

Some time before the end of the land claim meetings, the Complainant applied for Special Leave for the 31 days absent from work. Special leave was provided for under article 24.06 of the Collective Bargaining Agreement (“Collective Agreement”) between the Government of Yukon and the Public Service Alliance of Canada. In these applications, he did not request time off for a stress leave; rather, he declared the land claim meetings as the reason for his absence. His applications were denied. It should be noted that the Complainant did not file a grievance under the terms of the Collective Agreement.

The Complainant filed a complaint with the Yukon Human Rights Commission (“the Commission”). The complaint alleged that the Government of Yukon had discriminated against the Complainant on the basis of ancestry and religion by failing to consider his cultural and religious duty in their interpretation and application of article 24.06 of the Collective Agreement.

The Yukon Human Rights Board of Adjudication (“the Board”) considered four issues:

  • Does the Board have the legal power to hear this complaint given that the Complainant did not pursue a grievance under the rights granted to him pursuant to the Collective agreement?
  • If so, was there prima facie discrimination?
  • If so, did the Respondent comply with their duty to accommodate for the Complainant?
  • If not, what is the appropriate remedy?

First, the Board found that even though an employee is bound by the terms of the Collective Agreement, an employee must still possess the basic human rights that are provided under the Yukon Human Rights Act (“the Act”). The provisions of the Collective Agreement must always be subject to the Act. Therefore, if an employee feels an employer has violated the Act in their application of a collective agreement, the employee can choose not to file a grievance under the collective agreement and instead, file a human rights complaint. Ultimately, the Board found that it did have the power to determine whether or not there was discrimination in the application of the Collective Agreement.

Second, the Board considered whether there was prima facie discrimination. In other words, at the first blush, does there appear to be discrimination? In this case, the Board did not consider the time period in which the Complainant took time off due to stress because during that time, he was not engaged in activities directly related to his ancestral/religious duties. Through its analysis, the Board found that there was no prima facie discrimination. Section 24.06 of the Collective Agreement states that “at the discretion of the employer, special leave with pay may be granted”. In this case, the Board found that the Respondent did not exercise their discretion in an unreasonable manner when choosing to reject the Complainant’s application for special leave. Section 24.06 was intended for instances where the employee was physically prevented from reporting to work. In this situation, the Board did not accept that the Complainant had no choice. For example, he could have requested sick leave or tried to change his hours.

The third and fourth issues are not relevant since the Board did not find prima facie discrimination.

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