HR Professional - December/January 2008 - (Page 20)

L E GA L B Y D A N PA L AY E W MISSION IMPOSSIBLE: DUTY TO ACCOMMODATE he duty to accommodate is an important concept that has been entrenched in Canadian human rights law for decades. In a highly anticipated decision in HydroQuébec vs Syndicat des employés-e-s de techn niques professionnelles et de bureau d’HydroQuébec, the Supreme Court clarified Canada’s c p position on the duty to accommodate. T and reasonable basis and the psychiatrist’s conclusions that her attendance would remain problematic. Consequently, the employee ﬁled a grievance, which was dismissed by the Arbitrator and the Québec Superior Court. However, the Québec Court of Appeal set aside the judgment because Hydro-Québec had not demonstrated that it was impossible to accommodate her. Define impossible W When the Supreme Court issued its decision i in British Columbia (Public Service Employee R Relations Commission) vs BCGSEU (“Meiorin”) n nearly 10 years ago, it devised a test for determ mining whether a discriminatory standard can b be justiﬁed as a bona ﬁde occupational requirem ment. Among other things, the test required a an employer to establish “that the standard is The Supreme Court’s decision clarifies the duty to accommodate. reasonably necessary to the accomplishment of that legitimate work-related purpose and it must b be demonstrated that it is impossible to accomm modate individual employees without imposing u undue hardship upon the employer.” In Hydro-Québec, the central issue was the c e extent of the meaning of the word “impossible”. ‘‘ ’’ Case summary A unionized employee of Hydro-Québec suffered f from numerous physical and mental problems, w which caused her to miss a total of 960 work days over seven-and-a-half years. During this time, Hydro-Québec repeatedly adjusted her w working conditions. At the time of her dismissal, she had been off work for more than ﬁve months. T The termination letter referred to her chronic a absenteeism, her inability to work on a regular 20 D e c e m b e r 2 0 0 8 / J a n u a r y 2 0 0 9 Supreme Court decision In a unanimous decision, the Supreme Court of Canada disagreed with the Court of Appeal. According to the Supreme Court, the test applied by the Court of Appeal was erroneous. The court noted the standard should be proof of undue hardship, not proof that it is impossible to integrate the employee. Therefore, if the employee is still unable to perform their job for the foreseeable future, although the employer has taken measures to accommodate, the employer’s duty will end and they will be justiﬁed in termination. The Supreme Court found the appeal court erred in excluding the employee’s absences and Hydro-Québec’s accommodation efforts, and that the duration of the employee’s absences should be considered. The purpose of accommodation is to assist employees to participate in work, not to alter the essence of the employment contract. The court found the duty to accommodate does not exempt an employee from fulﬁlling the fundamental obligation arising from the employment relationship, namely the duty to perform work on a satisfactory and regular basis. The Supreme Court’s decision clariﬁes the duty to accommodate and reassures Canadian employers that their duty to accommodate is not unlimited. The true intention was to have employers demonstrate that all accommodation avenues that did not constitute undue hardship were exhausted. Dan Palayew is a partner at Heenan Blaikie and the government affairs liaison on HRPA’s Ottawa Chapter executive. HR P ROF ES SI O N AL

Table of Contents Feed for the Digital Edition of HR Professional - December/January 2008

HR Professional - December/January 2008 Contents Editor's Letter Contributors Leadership Matters Upfront Legal Compensation Human Capital Talent Management The R-Word Speak No Evil On Message Strategy HR 101 Interview with Donna Wilson Off the Shelf The Last Word

HR Professional - December/January 2008

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