By Gita Anand, Miller Thomson LLP With the assistance of Adrienne Campbell

Transcription

1 THE BOUNDARIES OF THE DUTY TO ACCOMMODATE HOW FAR DOES AN EMPLOYER HAVE TO GO? By Gita Anand, Miller Thomson LLP With the assistance of Adrienne Campbell For many employers and their advisors, the law on an employer s duty to accommodate in Canada is akin to a swamp, with firm ground in some places and hidden holes in other places into which the unwary may sink. The duty to accommodate is a fundamental legal obligation. An employer shall not discriminate against its employees on any of the protected grounds under the human rights legislation, and must make every reasonable effort, to the point of undue hardship, to accommodate an employee s individual circumstances falling under one of such grounds. If a union is involved, then it has a duty to assist in the attempts to accommodate. Only where the employer/union can show that the required accommodation will result in undue hardship will it be excused from the requirement to provide the accommodation. The critical question to all concerned is pinpointing when undue hardship has been reached. The most challenging situations involve accommodations that are required due to physical or mental disabilities, which prevent the employee from being able to perform all the functions of a job, accommodations arising from illness and resulting absences that may be either lengthy, or intermittent and frequent, and scheduling accommodations so that an employee can observe religious requirements that would otherwise impact the prevent the employee from working on specific days of the week or times of the day. Notwithstanding a series of decisions by the Supreme Court of Canada and a plethora of decisions by human rights tribunals and arbitrators across the country, it remains an open question as to exactly how far an employer must stretch in attempting to accommodate a specific situation before it can convince a trier of fact that it should be excused from its duty to accommodate on the basis of undue hardship. 1

2 Undue Hardship: What is it? The obligation to accommodate or to assist in accommodation is not limitless. In balancing an individual s right to be accorded accommodation with the employer s right to conduct its operations safely and cost-effectively, the legal concept of accommodation to the point of undue hardship has evolved. The Supreme Court of Canada, in Central Alberta Dairy Pool 1 and Renaud 2 set out some early and significant aspects of the undue hardship test. In Central Alberta Dairy Pool, the Court set out a non-exhaustive list of six factors upon which an employer might rely to show undue hardship. They are: Financial Cost Disruption of a collective agreement Problems relating to employee morale Interchangeability of workforce and facilities Size of the employer s operation Safety considerations A seventh factor has emerged from the case law, that being consideration of the employer s legitimate operational requirements of the workplace. Moreover, in seeking to balance these factors with the 1 Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R Central Okaganan School District No. 23 v. Renaud, [1992] 2 S.C.R

3 right of an employee seeing an accommodation, some factors, such as financial cost, safety and the size of the employer s operations have been accorded considerable more weight than others by decision-makers 3. In Renaud, a case involving religious accommodation, the Supreme Court made it clear that the use of the term undue inferred that some hardship is expected and acceptable. The amount of hardship to satisfy the accommodation must be more than inconvenience, it must be substantial. Prior to the recent decision of the Supreme Court of Canada in Hydro-Quebec v. Syndicat des employee-s de techniques professionnelles et de bureau d Hydro-Quebec, section locale 2000 (SCFP-FTQ), 4 many held the view that employer would be relieved of its duty to accommodate only where an employer could prove that it was impossible to provide accommodation without undue hardship. This summer, the Supreme Court of Canada in Hydro-Quebec clarified that the correct test of undue hardship is not one of impossibility. Acknowledging that the concept of undue hardship seems to present difficulties, the Court confirmed that the duty to accommodate is not limitless. The facts of the case involved a unionized employee of Hydro-Québec who had a number of physical and psychological conditions which led to severe absenteeism. Over a period of approximately seven and a half years, she missed 960 days of work. Hydro-Québec had made efforts to accommodate the employee s disability by adjusting her working conditions in order to reflect her limitations. Despite the accommodation efforts, the employee s absenteeism continued. The complainant was ultimately terminated after being absent from work for a continuous period of over five months. 3 Note that Section 17(2) of the Ontario Human Rights Code limits the factors upon which a party can rely to show undue hardship to cost, outside sources of funding, if any, and health and safety requirements, if any. The Ontario Human Rights Commission states in its Policy and Guidelines on Disability and the Duty to Accommodate that there are no other considerations that can be relied on under Ontario law other than those set out in the Code SCC 43 (unreported). 3

4 Around that time, her doctor had recommended that she stop working for an indefinite period. Hydro- Québec also had received a psychiatric report indicating that the complainant s absenteeism was not likely to improve. Upon termination, the complainant filed a grievance which was dismissed by the arbitrator on the basis that at the time of dismissal, the complainant was unable to work steadily and regularly for the reasonably foreseeable future. Furthermore, according to the arbitrator, the conditions required for her return to work would have constituted undue hardship. A motion for judicial review was dismissed by the Québec Superior Court, but the Québec Court of Appeal set that judgment aside and found that Hydro-Québec had not established that it was impossible to accommodate the complainant's disability. In allowing Hydro-Québec's appeal, the Supreme Court found that Hydro-Québec had shown that it could not have accommodated the employee any further without undue hardship. The Court made the following clarifications, which are helpful for employers to keep in mind when managing their workforce and considering how far they must go to accommodate those with disabilities: The correct test is whether the employee can be accommodated without imposing undue hardship upon the employer. The test is not whether it is impossible to accommodate the employee; The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship to the employer; The duty to accommodate does not require the employer to completely alter the essence of the employment contract, which is that employees have a duty to perform work in exchange for remuneration; 4

5 Employers must be flexible when developing accommodation measures. In situations where the employer can, without undue hardship, provide a variable work schedule, or lighter duties, or even arrange for staff transfers in order to allow the employee to do her work, it must do so as part of the accommodation process. The Court confirmed that in chronic absenteeism cases, if the employer can show that, in spite of efforts to accommodate, the employee will not be able to resume her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship. In other words, the employer s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. In such circumstances, the Court agreed with the notion that "it is less the employee's handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship." The Court also found that evaluation of the duty to accommodate requires a global assessment. That is, the employer must look at the entire situation, not just the circumstances at the point of termination to assess undue hardship. Courts, tribunals and adjudicators have consistently held that the standard of proof is very high that all available accommodation options have been considered and reasonably rejected. The employer must demonstrate, and must include, objective and clear proof of the steps taken by the employer in the specific circumstances, including clear and cogent evidence of why any possible accommodation was not implemented. As the Supreme Court of Canada noted in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) (referred to as Grismer), 5 accommodation is intended to insure that each person is assessed according to personal abilities rather than presumed group characteristics. 5 [1999] 3 S.C.R

6 What is clear from all the cases and tribunal decisions is that a consideration of whether an employer has or has not met its duty to accommodate to the point of undue hardship will be based on the specific circumstances in question, and will turn very much on the nature of objective and quantifiable evidence that the employer puts forth. Assumptions and speculations as to the impact of any changes in the workplace will not be sufficient. The nature and extent of the accommodation will depend on the nature of the alleged discrimination. Possible forms of accommodation can include, but are not limited to, any or all of the following: modified shifts, reduced hours and flexible work schedules modified duties modifying or changing policies bundling and unbundling of duties and reassignment of tasks leaves of absence / non-culpable time off alteration of physical surroundings or work areas providing assistive devices, ergonomic equipment or a personal attendant additional training transfers to other positions A. How Extensive Does the Job Search Have to Be? The case law is clear that the search has to be extensive. This may involve modifying the employee s current job duties, or looking for alternate positions within the company. In Ontario Liquor Board 6

7 Employees Union v Ontario (Liquor Control Board of Ontario) (Di Caro), 6 the adjudicator set out the incremental steps that an employer must normally go through in searching for appropriate accommodation short of undue hardship: Provide modifications as necessary that allow the employee to perform his own job. Consider whether the employee can be allowed to perform parts of the job, with or without modification, avoiding those tasks that are beyond the employee s restrictions ( bundling ). Consider other positions, first within the employee s own division or department and, if that is not possible, in other areas within the company, gradually expanding the area of search. Only as a last resort will the employer be required to look for accommodation outside the bargaining unit. In Renaud 7, the Supreme Court of Canada held that a union has a duty to cooperate in an employer s accommodation attempts, even if it means going outside the terms of the collective agreement. However, the employer must first look to see if there are other accommodations that are not disruptive of the collective agreement. The union has a duty to accept an accommodation suggested by the employer if it is the most reasonable solution to the problem, even if it impacts on the terms of a collective agreement, unless the union can show undue hardship. In order to show undue hardship, the union must show actual prejudice to other employees if the employer s proposed accommodation measures are adopted CanLII (Dissanayake). 7 Supra, note 2. 7

8 Consistent with Renaud, in appropriate cases, the employer may be required to transfer the employee to another bargaining unit or to a non-bargaining unit position. Most arbitrators are hesitant to order the transfer to another bargaining unit in the absence of evidence that this is the only reasonable way the employer can fulfil its duty to accommodate. For example, the arbitrator in Queen s Regional Authority and I.U.O.E. Loc. 942 (Snow) commented interpreting the P.E.I. Human Rights Act: the duty to accommodate across bargaining unit lines overrides collective agreement rights of any significance only where, first, the need to accommodate is clear, in that the claim of the person to be accommodated obviously outweighs the claims of those whose rights are displaced and, second, where there is no other reasonable way to fulfil it. The employer must very seriously seek a less intrusive way to accommodate an employee under the Human Rights Act. 8 This conclusion is consistent with the more recent decision of the Ontario Divisional Court in Hamilton Police Association v. Hamilton Police Services Board 9. In that case, the employer had established a policy of placing numerous officers from the uniform bargaining unit into the civilian bargaining unit in order to provide accommodation. The arbitrator sanctioned the practice. However, the Divisional Court overturned the arbitration award, because the arbitrator failed to consider whether these individual officers could have been accommodated in the uniform unit without undue hardship [p.38]. the Court noted at page 39 that the arbitrator s starting point should have been to ask whether the transfer of the particular officers to Communications [in the Civilian Unit] was the only reasonable alternative available to the employer in order to accommodate them without undue hardship. These decisions demonstrate that categories created for labour relations purposes do not serve to protect employers from obligations to provide human rights-based accommodation. There is 8 (1999), 78 L.A.C. (4 th ) 269 (Christie). 9 (2005) 141 L.A.C. (4 th ) 25 (overturning Hamilton Police Association v. Hamilton Police Services Board, (2004) 124 L.A.C. (4 th ) 116 (Barton). 8

9 increasing acceptance of the general view human rights laws will prevail over collective bargainingbased rights. B. Bundling of Duties In conducting a search for accommodation, several courts and adjudicators have noted the employer has an obligation to bundle, unbundle, or re-bundle job duties. Generally, bundling refers to a process whereby the employer is required to take a collection of meaningful tasks, and use them to create a new position for an employee. While consideration may need to be given to creating a new position through a bundling of existing duties in the search for appropriate accommodation, it is well established that the employer is not required to create a position that is simply a make work job for the employee and of no value to the employer. The tasks being bundled must result in a position that is meaningful and of some value to the employer. Even where the job is meaningful, if the employer can show that, for example, bundling all of the lighter duties together will put other employees at risk because they will have to shoulder the heavier duties, then undue hardship can be shown on the basis of health and safety. However, the fact that an additional position may have to be created is not in of itself going to be seen as undue hardship. As part of the bundling obligation, employers must be flexible in applying workplace standards when dealing with a request for accommodation. Taking the position that all employees have to be able to perform all of the functions of a particular job has been found to be a breach of the employer s obligation to accommodate. In Re Canada Safeway 10, the employer had adopted a requirement that, as a pre-condition to holding a cashier s position, the employee had to be able to perform all aspects of the job. An employee having a repetitive strain injury was required to pass tests following recuperation to show that she could perform the unmodified duties of the cashier position. The 10 (2000), 89 L.A.C. (4 th ) 312 (Sims). 9

10 arbitrator found that the employer had failed to consider re-bundling job duties, or other accommodative measures such as retraining the employee and introducing job aids. Moreover, in any permanent accommodation, an employee must be capable of performing the essential duties of the existing, re-bundled, or newly-assigned position. For example, in Holmes v Canada (Attorney General) 11 a government clerk suffered from severe neck and shoulder problems. She was given various reassignments, but was unable to meet the work loads. In a receptionist position she could not handle the typing, in her original position with limited and lighter duties she continued to struggle, and on a special project she could not keep up with work demands. The employer continued to try to find her suitable positions, but faced conflicting medical information about her limitations from her doctor and the government health department. The employer eventually concluded that there were no other positions that did not require the use of the same damaged muscles, nor could she be retrained. Her employment was terminated as she could not perform the essential duties of her job. She filed a human rights complaint. The Canadian Human Rights Commission refused to refer her complaint to a tribunal, having found that the employer had taken reasonable steps to accommodate her. On judicial review, the Federal Court found that the undue hardship standard does not require an employer act as a placement officer or create a new position expressly suited for the disabled employee, made up of new duties that were non-existent and do not suit its need. The Federal Court noted that the employer s obligation is to make a genuine effort to accommodate that employee, consistent with the type of work for which the employee was hired. This case illustrates the underlying principle of balancing the employer s operational requirements against the employee s individual circumstances. In The Toronto District School Board and Canadian Union of Public Employees, Local 4400 Re Accommodation Grievance of Heather Thompson-MacLeod, 12 the employee had suffered a number of 11 (1997), 130 F.T.R [2004] O.L.A.A. No. 355 (P.C. Picher). 10

11 injuries to the point where she could only perform 5% of her caretaker duties. The arbitrator found that it was neither possible nor appropriate for the employer to carve off the very light caretaker functions to create a full caretaker job, as this would not be possible short of undue hardship. As noted by arbitrator P. Picher: to carve the light duties out of a job of mixed light and heavy duties is not a required form of accommodation when it leaves the remaining caretakers with a bundle of heavy duties that could put them at risk of injury. Essex Police Services Board v Essex Police Association 13 involved a grievance alleging that the Police Services Board had failed to provide a disabled policeman with modified work. The arbitrator found that the employee was not able to perform the essential requirements of the two existing positions, and that the employer was not required to modify those positions to the extent necessary to accommodate the employee. The arbitrator considered whether was sufficient productive and appropriate work by way of a number of less physically demanding, existing functions, which could be cobbled together, short of undue hardship, into a position for this employee. The test, as always, is undue hardship and the fact that a particular set of duties may not yet exist as a position does not provide a legal obstacle to an accommodation in that form This, it seems to me, is particularly so where no formal position exists under the Collective Agreement and the duties and personnel are substantially interchangeable. The arbitrator noted that if the tasks are to be productive and ones the employer has identified as being necessary to the operation, there is a good chance they are already being done by other employees. 13 [2002] O.L.A.A. No. 944 (Goodfellow). 11

12 Other labour arbitration awards have re-enforced these approaches. In Re Community Lifecare Inc. and Ontario Nurses Association, 14 the employer had over 1,000 employees and operated 20 nursing homes. The arbitrator found that the employer had failed to accommodate a health care aide in a nursing home who had developed a bad back when the employer failed to consider what modified light duty work it might be able to provide on a permanent basis. The employer took the position that it was not required to provide modified work on a permanent basis as that would be creating an extra position which was not required for operational purposes, and which the employer felt it was not required to do. The arbitrator accepted the principle that an employee seeking an accommodation position must be able to perform the essential duties of the job, but noted a line of cases holding that the duty to accommodate extends beyond investigating whether an employee with a disability is capable of performing an existing job, and requires the employer to investigate whether, short of undue hardship, existing jobs can be adjusted, modified, or adapted to enable the individual to return to (or remain at) work. In the absence of even having considered whether there were lighter tasks that could be permanently bundled into a job, the employer was unable to prove that in doing so there would be a health and safety risk for the other nurses, or that it would cause financial hardship. In Ontario Liquor Control Boards Employees Union v Ontario (Liquor Control Board of Ontario (Sanfilippo), 15 the employer was found to have failed to meet its duty to accommodate when it refused to bundle some of the customer services representative duties into a new position for a disabled employee. The arbitrator noted that accommodation may involve job restructuring, reassignment to open positions, retraining for alternative positions, or job bundling if that would not constitute undue hardship for the employer, depending on the circumstances of the employment and the labour 14 (2001), 101 L.A.C. 4th 87 (Howe) CanLII (Watters). 12

13 environment at a given workplace. The arbitrator found that the employer must go beyond assessing whether the employee can perform the essential duties and requirements of his or her regular position, and consider whether, there is a job that bundling or restructuring, the employee can perform another job in its existing or some modified form. However, the arbitrator noted that this obligation does not extend to creating or maintaining an employee in an unproductive job. In both the above cases, the arbitrators found that the employer had an obligation to look at jobs outside the applicable posting areas. C. Saturation An employer may be able to argue that it has provided accommodation to so many other employees that it would be an undue hardship to have any more restrictions placed on the workforce. This argument has been referred to as saturation. However, proving saturation to the point of undue hardship is extremely difficult, particularly for large employers where there may be positions in other departments that can be modified, or bundling opportunities available. The employer still needs to demonstrate that the saturation level is such that, to the extent to which the employer is already accommodating other members of its workforce, further accommodation would result in undue hardship by way of financial cost, health and safety, impact on the collective agreement, morale of other employees or some combination of relevant factors. In Re Tenneco Canada and United Steelworkers of America, Local 2894, 16 an employee was terminated when she was bumped from her modified job during the course of a large downsizing. The employer advised her that she could not bump into a modified job in two other departments because there were already too many people with restrictions in those departments. At the arbitration, the company testified that it had suffered a significant downturn in business, and that at the time of termination, 16.5% of the bargaining unit complement was on modified duties, and of that, 21% of the 16 (2006), 157 L.A.C. 4th 133 (Samuels). 13

14 direct workers (those producing product) were on modified duties. The employer took the position that it was at the tipping point with respect to restricted workers. The arbitrator agreed that there could be a situation where saturation applies, but that undue hardship in such a situation, by way of undue impact on the cost of production or efficiency of the department, or creating an injurious situation for an able bodied worker must be demonstrated in fact, not just presumed. Although the employer had provided evidence as to the extent of the modified duties it was providing, it did not adduce any evidence of the financial or health and safety impact it would face in providing the modification for this employee. Hamilton Police Association and Hamilton Police Services Board and Peter Barton 17 involved a case where a number of officers covered by a uniform collective agreement working in modified positions in the uniform unit were transferred into vacant positions in the civilian Communications branch, which was covered by the civilian agreement. All the affected officers had been accommodated in the uniform branch prior to their transfers. The employer argued that it was becoming a challenge to accommodate all the officers in the uniform branch, and that the employer was near the point of saturation, with no breathing room left in the Service. However, in overturning the arbitrator s decision to deny the grievance, the Divisional Court noted that it had not been proven by the employer that there was no reasonable alternative to the transfers into the civilian unit, and that that there was no evidence that these particular officers could not have continued to be accommodated in the uniform unit, and no evidence of undue hardship to the employer in letting them remain there. In Ontario (Human Rights Commission) v Ford Motor Co. of Canada, 18 two employees who were members of the Worldwide Church of God observed the Sabbath from sunset Friday to sunset Saturday. They sought to be permanently excused from working Friday night shifts. The Ontario Divisional Court upheld the dismissal of the human rights complaint on the basis that accommodating these two workers would create an undue hardship for the employer. Although saturation was not 17 Supra, note [2002] O.J. No (Sup. Ct. J.). 14

15 argued by the employer, the principles relied on by the employer are comparable. The employer called evidence to show that there was already a high rate of absenteeism on Fridays, with resulting staffing difficulties as it was, and resulting fatigue for workers, a higher incidence of repairs, and an impact on morale. The employer successfully argued that changing its shift rotation on Fridays would result in significant and additional costs, have a detrimental effect on workplace safety and production, and would disrupt the collective agreement. As with other arguments relating to a defence of undue hardship, convincing a tribunal or court of saturation will require the employer to demonstrate, with objective evidence, the consequences of additional accommodation on its operation; Conclusion Recent developments in the law of accommodation reflect concurrent changes in the broader social and economic context. The expansion of the boundaries is, to a large extent, a barometer of our changing social and economic climate. As such, employers have to remain flexible, while balancing their operational interests against their legal obligations. Fortunately, this need for balance has been acknowledged by the Supreme Court in recent decisions