View cases - Stewart McKelvey

[65] I find that Mr. Derksen has established a prima facie case of discrimination on thebasis of his religion. First, there is the letter of July 9, 2002. I found it did not apply onlyto Mr. Derksen’s probationary period. The denial of the right to his religious days off,establishes a prima facie case of discrimination, or that a case of discriminationapparently occurred. I find the paragraphs below from the letter are key to that finding:With information that you have provided and the subsequent request ofseeking one day a month, I’m sorry to inform you that Myert Corps Inc.,will not be approving any other days except the one that was agreed on forJuly 10 th 2002.We are bound by employment standards, and to [sic] our best continue toprovide best practices in the work place. Since these days are not part ofwhat is described under current standards, you will need to make otherarrangements so that, your religious commitments do not interfere withwork.On its face, this letter denies the right to Mr. Derksen to take any more days off toobserve the New Moons or other religious commitments.[66] Second, there is no doubt that one of the reasons Mr. Derksen was dismissed washis unauthorized absence on August 9, 2002. Not only did Mrs. Imbenzi explain in herevidence that was the case as Myert considered it an unauthorized day off, it wasincluded on his Record of Employment as one of the reasons for dismissal. The onlyreason for Mr. Derksen’s absence on that day was to observe a religious holiday.[67] Having found that a prima facie case has been made out, I must now look at thedefence provided by the respondent. I do not find the evidence was constructed after thefact. What I do find, however, is that Myert did not make it clear to Mr. Derksen that hisemployment was in jeopardy. While Myert may have had reason to dismiss Mr. Derksenbecause of his performance, the decision was made only after he took the unauthorizedday off. It, as Mrs. Imbenzi said, was the event that made her say to Imbenzi that theyshould cut their losses, meaning let Mr. Derksen go. Observation of the New MoonSabbath was therefore a contributing event. Hence, I cannot find that Myert has provideda complete answer to establish a non-discriminatory reason for its conduct; part of it wasdiscriminatory.18