In its recent decision, H.T. v. ES Holdings Inc. o/a Country
Herbs, the Human Rights Tribunal of Ontario (Tribunal)
awarded two teenage employees over C$26,000 after they were fired
for observing a religious holiday.
Siblings 16-year-old H.T. and 14-year-old J.T. began working for
ES Holdings Inc. o/a Country Herbs (Country Herbs) in April 2014.
H.T. was responsible for packaging herbs, while J.T. made boxes
into which herbs were placed for shipping.
Shortly after joining Country Herbs, H.T. learned that she was
scheduled to work on a Mennonite holiday, which fell on a Thursday.
As a devout Mennonite, H.T. was required to attend church on the
holiday, so she promptly informed Country Herbs that she would not
be able to work that day.
In response, Country Herbs told H.T. that she must either work
on the holiday or else she must make up lost time at midnight. H.T.
refused to accept either option as she felt that both choices were
unreasonable. Working on the holiday was not an option because of
her religious beliefs and working at midnight was not a realistic
alternative as she felt the workplace was not safe at night and, in
any event, she could not find transportation at that hour.
Despite the fact that H.T. informed Country Herbs of her
intentions, Country Herbs called her house on the day of the
holiday to inquire if she was coming to work. When her mother
responded that she would neither be at work that day nor make up
time at midnight, Country Herbs stated that she need not return to
work at all. Country Herbs stated that this also applied to J.T.
even though he was not scheduled to work that day.
H.T. and J.T. commenced a human rights application against
Country Herbs alleging discrimination on the basis of creed and
association as well as reprisal contrary to the Ontario Human
Rights Code (Code).
Country Herbs argued that it fired H.T. in accordance with its
attendance policy, which prohibits employees from taking time off
on a Thursday due to business demands. Country Herbs insisted that,
in order to be fair to its other Mennonite employees who observe
the holiday, it could not make an exception for H.T. In fact, 11
other Mennonite employees had requested the holiday off. Six took
the holiday off and made up lost time at midnight and the others
agreed to work on the holiday. Only H.T. refused to accept either
The Tribunal accepted that Country Herbs adopted the policy in
an honest and good faith belief that it was necessary given the
nature of the business and the demands of its customers.
Nevertheless, while the policy appeared to be reasonable, this did
not negate Country Herbs' duty to accommodate H.T.'s
religious beliefs. Specifically, Country Herbs should have
considered alternative arrangements and engaged in meaningful
discussions with H.T. about what steps could be taken to
accommodate her religious needs. Country Herbs failed to do so. The
only alternative offered was for H.T. to work at midnight, which
was unreasonable given her young age and the fact that she had no
means of transportation to get to work at midnight.
Ultimately, the Tribunal found that "the expectation that
H.T. would work on the holiday in accordance with the attendance
policy or be fired was discriminatory on the basis of her
With respect to J.T., the Tribunal noted that, although he was
not scheduled to work on the holiday, he was fired because of his
association with his sister who had asserted her right to observe a
religious holiday. Accordingly, the Tribunal held that Country
Herbs discriminated against J.T. on the basis of association
contrary to the Code.
The Tribunal awarded C$10,000 to H.T. and C$7,500 to J.T. for
injury to dignity, feelings and self-respect. The Tribunal also
awarded them a combined sum of C$8,617 for lost wages between the
date of termination from Country Herbs and the time they found new
In addition to monetary remedies, the Tribunal ordered Country
Herbs to prepare an internal human rights policy and post Code
cards to promote future compliance. The Tribunal also ordered
Country Herbs' president and vice president to undergo human
The Tribunal's decision is an important reminder that
employers must be prepared to accommodate employees to the point of
undue hardship, even in the face of a core company policy. The fact
that a company policy seems reasonable is not enough. The
discretion in implementing such policy must also be exercised in a
manner that is not discriminatory. Where the enforcement of such
policy has the potential to breach the Code, employers must explore
reasonable accommodation strategies and options and implement
appropriate accommodation measures short of undue hardship.
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