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Know Your Rights: The Union’s Role in Reasonable Accommodation

The duties of management to accommodate employees for issues such as disability or religious beliefs and practice are well accepted. Management must take steps to ensure that the employee does not suffer disadvantage or discrimination based on a prohibited ground under the Canadian Human Rights Act or similar legislation.

Dan Rafferty, Regional Rep./Negotiator, Toronto Office

The role of the union in such situations is less clear. For example, what about cases where the proposed accommodation would violate the collective agreement? Or where the employee is placed into a job that is considered a "plum" position that does not appear to be merited? Or where the employee is exempt from many of the "rules of the office" which may be interpreted as favouritism by colleagues?

The 1992 Supreme Court decision, Central Okanagan School District No. 23 v. Renaud, tackled many of these issues. Renaud, who worked as a custodian at the school, was a member of the Seventh-Day Adventists who could not work on his Sabbath, from sundown Friday until sundown Saturday.

Renaud, a member of the Canadian Union of Public Employees (CUPE) Local 523, had succeeded, through seniority, in obtaining a Monday to Friday job at the school in 1984. However, since the auditorium was used on Friday evenings, one custodian was required to be present.

Accordingly, the collective agreement provided for an afternoon shift from 3 p.m. to 11 p.m. on Fridays. Renaud advised his employer that he could not work Friday nights for religious reasons, and asked to be accommodated.

The employer concluded that the only practical alternative was to create a Sunday to Thursday work schedule for Renaud. When the union was informed of this change, it threatened to lodge a policy grievance for violation of the collective agreement. Unable to accommodate him, the school board fired Renaud after he refused to work the Friday evening shift.

Renaud filed a complaint under the British Columbia Human Rights Act against both the school board and the union. The Human Rights Council found that both the school board and the union had discriminated against Renaud for failing to accommodate his religious beliefs and ordered him reinstated, with both parties ordered to pay damages.

On appeal to the Supreme Court of British Columbia, the decision was overturned, and this action was upheld by the British Columbia Court of Appeal, which ruled that there was no duty to accommodate in the circumstances.

The case was taken to the Supreme Court of Canada, which ruled in favour of Renaud. The decision provides some guidelines for unions in the accommodation of members.

The duty to accommodate only applies if the union is a party to the discrimination. This can occur in two ways: if the union allows a work rule that is discriminatory (such as a provision in the collective agreement), or if the union refuses to cooperate with the employer to accommodate the member.

This does not mean that the union has to cooperate at any cost. The Court made it clear that "any significant interference" with the rights of other members would ordinarily justify the union in refusing to cooperate. The Court also argued that, in most circumstances, the employer was in a better position than the union to make the accommodations required.

In most cases, this would mean that employers find solutions which do not interfere with the collective agreement. Nevertheless, the union has a duty, when it is a "co-discriminator", to actively cooperate with the employer to find solutions. It must not wait for the employer to do all the work; it must also identify potential accommodations.

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The Court found that the union failed to show that adjusting Renaud’s work schedule resulted in any significant interference in the collective agreement. The solution required was minimal – ask another employee to work the Friday afternoon shift in Renaud’s place. If this had been done, there would have been no interference at all with the collective agreement.

When faced with a request to accommodate, unions should:

  • Protect the integrity of the collective agreement and the rights of other members of the bargaining unit,
  • Cooperate as an active partner in accommodation efforts and
  • Not unreasonably impede or interfere with the process.

It is not the role of the union to ensure that all members of the bargaining unit are happy with the outcome, or even that the member being accommodated receives the most favourable accommodation possible, but rather that the member is accommodated in a reasonable fashion.

As in many aspects of human rights and labour relations, respecting the rights and responsibilities of the employer, the employee and the union will always be a balancing act.

Contributor: Dan Rafferty, Ontario Regional Representative/Negotiator, Toronto Office

National Capital Region Council

The National Capital Regional Council was held at the Chateau Montebello on September 12 and 13. Members of the NCR Executive posed for a photo. Left to right: Gordon Bulmer (CS), Paul Godin (NAVCAN), Philip Wang (AV), Robert Bowie-Reed (CS), Debi Daviau (CS), Allan Shusterman (OSFI-retired), David Young (NR), Karen Goyette (AFS), Zul Nanji (AFS), Nita Saville (AV), Joe Podrebarac (NR), Sean O'Reilly (CS).


Publish Date: 08-OCT-2008 10:29 AM