Page 39 - CCCA63_2008

CCCA_V2No3_Col-LabrEmpl-FIN.qxd:CCCA_V1No2_Col-LabrEmpl-V1.qxd 9/17/08 5:11 PM Page 47 Labour & Employment Law The limits of accommodation Undue hardship does not mean the impossible. uman rights legislation imposes a duty basis and the fact there was no prognosis for discharged its burden of proof and estab- Hon employers to accommodate a dis- an improvement in attendance. lished undue hardship.” The court empha- abled employee to the point of undue hard- The complainant’s union filed a griev- sized that the employer’s duty to accom- ship. Just what constitutes “undue hardship” ance, which was dismissed by an arbitrator; modate will end when the employee is no has been recently clarified by the Supreme the Superior Court upheld the decision longer able to fulfill their basic obligations Court of Canada in Hydro-Québec v. Syndicat on judicial review. But the Quebec Court to the employer for the foreseeable future. des employé-e-s de techniques professionnelles et of Appeal overturned the Superior Court, The Supreme Court also decided that de bureau d’Hydro-Québec, section locale 2000 ruling that the complainant was not totally the assessment of the duty to accommo- (SCFP–FTQ), 2008 SCC 43. unable to work and that Hydro-Québec date should be done in a way that looks at In Hydro-Québec, the Supreme Court was obliged to prove it was impossible to the entire time the employee was absent, held that the Quebec Court of Appeal had accommodate the complainant’s character- not just the circumstances arising at the wrongly defined undue hardship as istics. The Court of Appeal also stated the time of dismissal. imposing a duty on the employer to duty to accommodate must be assessed as accommodate unless it is impossible for of the time of the decision to terminate. End Result the employer to do so. Instead, an employ- Hydro-Québec appealed. The Hydro-Québec decision underlines that er has a duty, if it can do so without undue employers need not show it is “impossi- hardship, to arrange the employee’s work- Decision ble” to accommodate a disabled employee place or duties so as to enable the employ- The Supreme Court of Canada stated the before the employment relationship can ee to do his or her work. real issue in this case was the interpreta- be brought to an end. Rather, the employ- tion and application of the undue hard- er has the right to expect an employee to Background ship standard, noting that the concept of do his or her work. While an employer Over the course of seven years, the com- undue hardship has appeared to present must always respect an employee’s funda- plainant missed 960 days of work while difficulties for employers and employees. mental rights, those rights do not include employed with Hydro-Québec, suffering Affirming (and clarifying) the principles the right to hold a position when the from many different mental and physical in the 1999 Meiorin decision, the Supreme employee is clearly not able to return to problems. Despite attempts by Hydro- Court underlined that what is required by his or her duties for the reasonably fore- Québec to adjust her working conditions by an employer is “not proof that it is impos- seeable future. various methods, the complainant continued sible to integrate an employee who does It should be emphasized that the to be absent. Hydro-Québec underwent an not meet a standard, but proof of undue employer had patiently and tolerantly administrative reorganization that resulted in hardship, which can take as many forms as addressed a very lengthy absenteeism prob- the legitimate abolishment of the com- there are circumstances.” lem on the part of this employee. Certainly, plainant’s position, and assigned the com- An employer is not obliged, when the lengths to which the employer went to plainant to a new position. Despite these endeavouring to fulfill its duty to accommo- assist the employee figured prominently in accommodations, the complainant’s rela- date, to turn the workplace upside down. the employer’s success. It is refreshing to tionship with her employer deteriorated. Rather, the employer must accommodate by see such positive conduct on the part of The complainant’s physician recommend- rearranging the employee’s workplace or the employer rewarded where the employ- ed she not work again until the work-related duties to enable that employee to do his or ee has simply become unable to provide dispute was resolved. Hydro-Québec’s psy- her work, up to the point of undue hardship. any of the service contemplated by the chiatric assessment of the complainant found In a case of chronic absenteeism, the employment relationship. she would no longer be able to work on a court stated: “[I]f the employer shows that, regular basis and her chronic absenteeism despite measures to accommodate the Ian J. Smith is an associate with Miller would continue. Hydro-Québec dismissed employee, the employee will be unable to Thomson’s Edmonton office whose practice the complainant in July 2001, citing her resume his or her work in the reasonably is primarily labour relations (ismith@ inability to work on a regular and reasonable foreseeable future, the employer will have millerthomson.com). AUTOMNE 2008 CCCA Canadian Corporate Counsel Association 47