The Duty To Accommodate In The Canadian Workplace-Books Pdf

The Duty to Accommodate in the Canadian Workplace
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Summaries of Leading Recent Accommodation Cases, Some of what follows are summaries of leading accommodation cases from labour arbitrators. and human rights tribunals that I along with Matthew Wilson counsel at the Regional. Municipality of Durham have prepared for the on line paid subscription service. accommodate ca found at www accommodate ca Designed for the Canadian industrial. relations community by the Centre for Labour Management Development in Winnipeg this. service provides a comprehensive summary each week of a seminal accommodation case arising. from the Canadian workplace You are invited to review the website. 1 Leading Principles of Accommodation, The essence of the duty to accommodate is straight forward to state employers and unions in. Canada are required to make every reasonable effort short of undue hardship to accommodate. an employee who comes under a protected ground of discrimination within human rights. legislation In most cases the protected ground requiring an accommodation is a disability. although recent accommodation cases have involved other grounds such as religion 1 gender 2. and race 3, While the general rule is easy to state the outer boundaries of accommodation are much harder. to determine But this much is clear to date the duty requires more from the employer than. simply investigating whether any existing job might be suitable for a disabled employee Rather. the law requires an employer to determine whether existing positions can be adjusted adapted or. modified for the employee or whether there are other positions in the workplace that might be. suitable for the employee, The employer must accommodate up to the point of undue hardship While there is no single. definition in law of this term the various decisions on accommodation make it clear that this. effort must be substantial The caselaw has clearly said that the employer s must show that its. attempts to accommodate were serious 4 conscientious 5 genuine 6 and demonstrated its. best efforts 7 The Supreme Court of Canada in 1999 endorsed this threshold stating that. employers must establish that it is impossible to accommodate individual employees without. imposing undue hardship 8 Once the employee has established a prima facie case that she or he. Jones v C H E Pharmacy 2001 39 C H R R D 93 B C H R T Commission scolaire regionale de Chambly v. Bergevin 1994 115 D L R 4th 609 S C C, British Columbia Public Service Employee Relations Commission v B C G S E U 1999 3 S C R 3.
Re Town of Geraldton 1998 73 L A C 4th 260 Murray, Krznaric v Timmins Police Services Board 1997 98 C L L C 230 004 Ont Div Ct. CUPW v Canada Post Corp 1997 6 Lancaster s Equity and Accommodation Reporter 5 May June Ponak. Holmes v Attorney General of Canada 1997 97 C L L C 230 022 F C T D upheld on appeal A 430 97. QL 1999 FCJ 598 29 April 1999, CAW Local 3204 v Royal Oak Mines 1997 6 Lancaster s Equity and Accommodation Reporter 3 May June. British Columbia supra note 2 at para 54, has a mental or physical disability that requires employment accommodation the burden then. shifts to the employer to prove that every reasonable effort was made to accommodate the. employee s disability, The duty to accommodate is a fundamental legal obligation It comes from three sources i the. applicable human rights legislation ii rulings from the Supreme Court of Canada and iii. rulings of labour arbitrators and human rights tribunals The Supreme Court rulings are where. labour and employment lawyers primarily look for direction in this area In a series of important. decisions that began in 1985 9 the Supreme Court of Canada has said that. Human rights legislation has a quasi constitutional place in Canadian law and all. other statutes policies and practices public and private cannot be inconsistent. Discrimination may be entirely unintentional yet it will be in violation of human. rights statutes if a person under a protected ground is treated differentially and. adversely for no justifiable reason, Accommodation is a significant human rights obligation and must be a central.
feature in the Canadian workplace, The duty rests on three sets of shoulders with employers unions and the employee. seeking the accommodation all assuming legal responsibility for ensuring the success. of an accommodation request, The primary responsibility rests with the employer because it has the ultimate control. over the workplace Once it receives a request it must initiate the accommodation. The union must co operate with the accommodation process and not unreasonably. block a viable accommodation option, The employee is expected to participate in the accommodation process and cannot. refuse a reasonable accommodation offer, Collective agreement provisions are to be respected but they may have to be waived. if they unreasonably block a viable accommodation option or if they treat individuals. who are protected by human rights legislation differently without a compelling. justification, In three seminal decisions in 1999 and 2000 10 the Supreme Court of Canada has clarified and.
broadened the extent of the duty It has stated that. Central Okanagan School District No 23 v Renaud 1992 2 S C R 970 Central Alberta Dairy Pool v Alberta. Human Rights Commission 1990 2 S C R 489 O Malley v Simpson Sears 1985 2 S C R 536. Qu bec Commission des droits de la personne et des droits de la jeunesse v Montr al City 2000 1 S C R. 665 Grismer v British Columbia A G 1999 3 S C R 868 British Columbia PSERC v British Columbia. Government and Service Employees Union supra note 2. Accommodation measures must be taken unless it is impossible to do so without. imposing undue hardship,The undue hardship threshold is high. Employers and unions must be sensitive to the various ways that individual. capabilities may be accommodated, Workplace standards such as lifting requirements or work schedules that. unintentionally distinguish among employees on a protected human rights ground. i e disability gender religion etc may be struck down or modified Employers. must build liberal conceptions of equality into workplace practices. Courts labour arbitrators and human rights tribunals are to take a strict approach to. exemptions from the duty to accommodate Exemptions are to be permitted only. where they are reasonably necessary to the achievement of legitimate business related. objectives, In British Columbia PSERC v British Columbia Government and Service Employees Union. Meiorin 11 its most comprehensive decision on accommodation to date the Supreme Court. said that employers must ask themselves a series of questions when considering an employee. request for accommodation These questions include, i Have alternative approaches been investigated that do not have a discriminatory. effect such as individual testing, ii If alternative standards have been investigated and found to be capable of fulfilling.
the employer s purpose why were they not implemented. iii Is it necessary to have all employees meet the single standard for the employer to. meet its legitimate purpose As well could standards reflective of group or individual. differences and capabilities be established, iv Is there a way to do the job that is less discriminatory while still accomplishing the. employer s business objectives, v Is the standard properly designed to ensure that the desired qualification is met. without placing an undue burden on those to whom the standard applies. vi Have other parties in the workplace the union and the individual employee seeking. accommodation fully assisted in the search for a solution. The Meiorin decision has since become the contemporary touchstone for accommodation. analysis by labour arbitrators human rights tribunals and the courts 12 The significance of the. judgement lies in its articulation of a unified three step test for determining the existence of. Several perceptive articles have been written about the importance of Meiorin C Sheppard Of Forest Fires and. Systemic Discrimination A Review of British Columbia Public Service Employee Relations Commission v. B C G S E U 2001 46 McGill Law Journal 533 K Schucher Weaving Together the Threads A New. Framework for Achieving Equality in Workplace Standards 2000 8 Canadian Labour and Employment Law. Journal 325 D Pothier BCGSEU Turning a Page in Canadian Human Rights Law 1999 11 Constitutional. Forum 19 and T Witelson From Here to Equality Meiorin TD Bank and the Problems with Human Rights Law. 1999 25 Queen s Law Journal 347, discrimination and whether it is unjustified under human rights law This test signifies not so. much a break with the recent developments in human rights and accommodation law as it does a. synthesis of the prevailing principles while discarding what had not worked and raising the. threshold for compliance, The Supreme Court s three step test in Meiorin simultaneously combines the previously distinct. legal approaches towards analysizing direct and adverse effect discrimination and in doing. so ends the prevailing confusion over how and when to apply these tests When assessing the. validity of a challenged standard or practice a legal decision maker is required to ask the. following three questions, i Has the employer adopted the challenged standard or practice for a purpose.
rationally connected to the performance of the job. ii Has the employer adopted the standard in an honest and good faith belief that it is. necessary to fulfil the work related purpose And, iii Is the standard reasonably necessary in that it would be impossible to. accommodate an individual employee without imposing undue hardship upon the. With the arrival of this unified test discrimination analysis is now more straight forward and. more comprehensive The three step test begins with a general review of the particular work. performed then moves to assessing the employer s subjective intent for creating the standard. and finally focuses on the accommodation of the individual worker and the defences that the. employer can erect to attempt to justify either the standard or its particular application If the. employer fails any one of the steps then it is in breach of its duty not to discriminate The. essence of the new approach in Meiorin has been to require employers to accommodate the. characteristics of individual employees as much as reasonably possible while taking a strict. approach to any exceptions from the accommodation duty. 2 Undue Hardship, An employer and or a union are required by law to accommodate an employee unless the. required accommodation would result in undue hardship to the employer and or the union The. Supreme Court of Canada in Central Alberta Diary Pool 13 and Renaud 14 laid out the important. aspects of the undue hardship test, In Central Alberta Diary Pool the Supreme Court developed a non exhaustive list of six factors. that it said were relevant to what constitutes undue hardship 15 They are. Financial cost,Impact on a collective agreement,Problems of employee morale. Interchangeability of the work force and facilities. Size of the employer s operations and, In addition to these six classic undue hardship factors an unarticulated seventh factor now.
appears to be emerging the legitimate operational requirements of a workplace While labour. arbitrators and human rights tribunals have not yet formalized this new factor recent decisions. indicate an allowance for undue hardship in the workplace that does not easily fit within the. classic six factors, A labour board or human rights tribunal that is applying these factors will balance them with the. right of the employee seeking an accommodation to be free from discrimination Rarely will all. of these factors come into play in any one single case While the Supreme Court itself did not lay. out these undue hardship factors in any order of importance it is clear from the subsequent. caselaw that some of these factors have significantly more weight than others Safety and the size. of the employer s operations are frequently invoked by employers and legal decision makers. have treated them with some consideration Provisions of a collective agreement have been given. an intermediate importance as have the legitimate operational requirements of a workplace. Relatively little regard has been given to the defence of employee morale Similarly very few. Supra note 9,Supra note 9, Note that in Ontario the Human Rights Code in s 17 2 lists only three factors that would amount to an undue. hardship consideration cost health and safety requirements and outside sources of funding The Ontario Human. Rights Commission states in its Policy and Guidelines on Disability and the Duty to Accommodate Toronto. OHRC 2000 that there are no other considerations other than those that can be brought into those three. standards that can be properly considered under Ontario law p 27 Some arbitrators have indicated that the undue. hardship factors are limited to those listed in the Code i e Ingersoll Town 2003 O L A A No 554. Williamson However other labour arbitrators in Ontario have regularly relied upon the longer Central Alberta. Dairy Pool list This question remains to be resolved in law. cases have accepted cost as a legitimate undue hardship factor in the specific circumstances The. issue of the interchangeability of the workforce and operations has generally been subsumed. relations community by the Centre for Labour Management Development in Winnipeg this service provides a comprehensive summary each week of a seminal accommodation case arising from the Canadian workplace You are invited to review the website 1 Leading Principles of Accommodation The essence of the duty to accommodate is straight forward to state employers and unions in Canada are required

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