Employer's Knowledge of Disability Not Necessary to Establish Duty to Accommodate Disabled Employee - Or is it?

While the law tends to move incrementally, one decision at a time, slowly establishing "precedents" that later decisions will follow, the outcomes in some cases do not always appear to be consistent.  Not infrequently, a decision may appear to be an outlier, at least until one delves deeper to understand the basis on which the result differs from previous cases. 

In a post on this blog in August (here), I noted that an employer generally does not have an obligation to accommodate an employee until such time as the employee comes forward with a condition that requires accommodation.  In both Bish v. Elk Valley Coal Corporation and Huffman v. Mitchell Plastics, employers were not held responsible for failing to accommodate employees who failed to disclose their "disability". However, it should be noted that in both decisions, the underlying condition related to substance abuse.

In a recent decision of the Alberta Court of Appeal, however, the Court found that an employer's knowledge of the employee's disability was not an essential element of establishing whether there was prima facie discrimination.  In Telecommunications Workers Union v Telus Communications Inc., the employee was employed as a representative in a call centre operated by Telus.  He was a member of a bargaining unit represented by the TWU.  At the time of hiring, the employee had completed a Diversity Form, indicating "yes" to the question of whether he was a "person with a disability".  At no time, however, did Telus follow up with the employee to learn the nature of his condition or whether he required any form of accommodation. The employee was ultimately hired, but began displaying performance issues within the probationary period. On the evidence presented at grievance arbitration, it appears that the employee may have told his supervisors that the performance issues were related to his "condition", but it was not clear whether he expressly mentioned having Asperger's Syndrome.  The grievor was terminated, and the Union took his discharge to arbitration.

At labour arbitration, the Arbitrator determined that the employee did have a disability and that the issues with his performance which resulted in his termination were connected to that disability.  However, the Arbitrator also found that the employee had not provided sufficient information to the employer to trigger the duty to accommodate (or even to compel the employer to look further into his condition), and that the position in question could not be modified in a way that would permit the grievor to meet the requirements of the job.  The Union sought judicial review, but the Arbitrator's decision was upheld by a judge of the Court of Queen's Bench.

On appeal, the Union argued that the Arbitrator and the lower court had both misapplied the test for prima facie discrimination, and had failed to properly consider the test for establishing a bona fide occupational requirement.  The Court of Appeal reviewed the test for a finding of adverse effect discrimination, and found that the employer's knowledge was not a necessary element of that test.  Provided there was a negative consequence for the claimant from an apparently neutral rule, and the employee's disability contributed to that adverse outcome, the claimant has made out adverse effect (or indirect) discrimination.  In the case at bar, the employee's disability was a contributing factor in his inability to meet the employer's performance standards, which led to his discharge, so he had clearly made out a case. 

However, the Court then went on to consider the test for demonstrating a bona fide occupational requirement as set out in PublicService Employee Relations Commission v British Columbia Government and ServiceEmployees’ Union (often cited as “Meiorin”), and found that the employer could not have accommodated the employee in his current or any other position, given the effects of his disability.  Accordingly, although the Court disagreed with the Arbitrator's finding that there was no prima facie discrimination, the Court upheld the ultimate decision to dismiss the grievance.

The Alberta Court of Appeal's finding that an employer need not have actual knowledge of an employee's disability before being obligated to accommodate the employee initially appears to be supported by the decision of the Supreme Court of Canada in Moore v British Columbia (Education).  However, the Moore test for prima facie discrimination does not stand in isolation. One must still consider the test in Meiorin, and other earlier human rights decisions, such as Central Okanagan School District No. 23 v. Renaud.  In the latter case, the SCC commented on the duty on a complainant, whether in a case of direct or adverse effect discrimination.  At p. 994, the Court stated:

The search for accommodation is a multi-party inquiry.  Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.  The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley.  At page 555, McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

To facilitate the search for an accommodation, the complainant must do his or her part as well.  Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation.  Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

Clearly, unless an employee explicitly draws the employer's attention to the need for accommodation (or even the fact of disability), there cannot be an obligation on the employer to take steps to accommodate the employee.  The employer's knowledge, therefore, is an element of the analysis (albeit not at the stage of establishing prima facie discrimination).

The result in the Telus case does line up with the outcomes in Bish and Huffman, but how the Court got there may have created unnecessary confusion in the law.  By suggesting that an employer's knowledge is not a necessary element of the discrimination and accommodation analysis, the Court may lead employers and HR professionals to believe that they need to ferret out any and all potential disability claims before they surface as human rights complaints.  The law does not go that far.  Employees still have an individual responsibility to be frank about the need for accommodation and to participate in the process.  That has been the law for over 20 years, and the decision in Telus doesn't change that.

Do you have questions about human rights issues or the scope of the employer's duty to accommodate?  Contact Lance Ceaser for expert advice and guidance.

 

 

Arbitrators Have Exclusive Jurisdiction Over ALL Matters Covered by the Collective Agreement

A recent decision of the Ontario Court of Appeal highlights the importance of the decision in Weber v. Ontario Hydro almost 20 years later.  In Weber, the Supreme Court of Canada had to determine whether legislatures had granted exclusive jurisdiction to labour arbitrators to deal with all issues of interpretation, application or alleged violation of a collective agreement, or if they shared concurrent jurisdiction with the courts.  Under the former model, unionized employers and employees would have virtually no recourse to the courts if their disputes could be said to arise under the collective agreement.  The Supreme Court ultimately rejected concurrent jurisdiction, and stated very clearly that all issues arising in the unionized workplace that fell within the four corners of the collective agreement had to go to arbitration.

The employee in George v. Anishinabek (Police Service) was a member of the Anishinabek Police Service (the "APS") who was facing discipline.  Under a tri-partite agreement among the federal and provincial governments and several First Nations, the APS was retained to provide policing services within certain APS territories. Oversight of APS policing was granted to the Police Governing Authority ("PGA"), which was also responsible for decision-making under APS' Code of Conduct for its employees.  The PGA was also the "employer" of all APS staff, and was bound to a collective agreement with the Public Service Alliance of Canada, which provided a grievance procedure for all issues falling under the collective agreement.  Under the APS Code, decisions on discipline were to be made within 6 months of an incident, but with some discretion for the PGA to extend those timelines.  Mr. George was advised of a disciplinary hearing more than 12 months after an incident on the job, but was not given notice that APS had sought an extension of the time to commence a proceeding under the Code.  As a result, he brought an application for judicial review in the Divisional Court to quash the notice of disciplinary hearing (on the basis of a lack of procedural fairness), and was successful.  The APS appealed that decision.

At the Divisional Court, the APS did not challenge the court's jurisdiction to judicially review the decision of PGA, but this was the central issue in its appeal to the Ontario Court of Appeal.  While appellate courts will usually not allow parties to argue points that were not argued in the courts below, they did permit APS to pursue this argument as it might be determinative of the matter, could be argued on the existing record without further evidence, and would not be overly prejudicial to the respondent.  On the question of whether the Divisional Court had jurisdiction to engage in judicial review, the Court of Appeal relied on Weber to find that the answer was "no".  Under Weber, a court must consider the nature of the dispute, and whether that dispute falls within the ambit of the collective agreement in question. In applying the test to the circumstances of the case, Justice Doherty (writing for a unanimous court) found that the issue revolved around discipline.  While discipline was a matter covered by the Code, the Code was simply the mechanism by which the employer exercised its management rights under the collective agreement.  Accordingly, the dispute in question was one that fell within a labour arbitrator's exclusive jurisdiction, and the issue of procedural fairness should not have been addressed by the Divisional Court.

The Court of Appeal's decision serves as a good reminder of the extent to which a collective bargaining relationship changes the dynamics of a workplace.  Not only are typical employee relations issues barred from the courts, but any dispute or matter of interpretation, including those that arise under employment-related statutes, should be brought before an arbitrator for determination.  It is therefore important for employers to ensure that they are mindful of Weber when confronted with a claim (or the threat of a claim) in the courts, and to argue that the issue should be resolved in grievance arbitration.

Do you have questions about labour relations or other employment-related litigation?  Contact Lance Ceaser for assistance.
 

When Arbitrators "Get It Wrong": Judicial Review as a Remedy

Section 48 of the Labour Relations Act provides that all collective agreements in Ontario must provide for "final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement".  As a result, the courts will generally show considerable deference to the decisions of labour arbitrators.  But what about those instances where the decision of an arbitrator seems to fly in the face of reason?  A couple of recent decisions from the courts indicate that deference only goes so far.

The decision of the Alberta Court of Appeal in Telus Communications Inc. v Telecommunications Workers Union offers an example of just such a case.  The grievor was a service technician for Telus.  He had asked to use vacation to participate in a slo-pitch tournament.  His request was denied, but the employee called in sick for the day, stating that he could not come in "due to unforeseen circumstances".  His manager attended the ball park, and witnessed the grievor pitching in a game.  When confronted, the grievor said that he awoke that day with severe diarrhea, but that he was able to attend the tournament, just to watch.  Upon further questioning, he admitted that he was playing (only pitching, not batting or running the bases), and stated that he felt he could manage his condition at the ball park, but could not have attended customers' homes.  The employer terminated the grievor, and the union filed a grievance.  At arbitration, the Arbitrator acknowledged that the grievor had twice lied to the company during the investigation meeting, and that he had planned to play in the ball tournament despite not being given the day off.  However, the Arbitrator ultimately decided that the company had "over-reacted" and substituted a one-month suspension for the discharge.

On judicial review, the Chambers Judge found that the Arbitrator's decision was subject to a standard of "reasonableness", but that the decision could not stand.  The Judge ruled that the Arbitrator had failed to properly weigh the evidence and that his conclusion that an employee could be too sick to work, but could still pitch in a baseball game, "defies logic and common sense".  Moreover, the Arbitrator's decision that discipline was only warranted where the employer could establish that the employee's absence actually affected customer service was unreasonable.  Rather than sending the matter back to the Arbitrator or a different arbitrator, the Chambers Judge ruled that the only reasonable conclusion available was that the grievor lied about being sick, and that his termination was justified.  In the result, the Arbitrator's award was quashed, and the discharge was upheld.

The Alberta Court of Appeal found that the Judge was "correct" that "the arbitrator's decision was not within the range of possible outcomes defensible in respect of the facts and law".  The Court also agreed that where sending the matter back for re-hearing "would serve no useful purpose", it is open to a reviewing court to quash the decision and uphold the termination.  Accordingly, the appeal was dismissed.

The result in Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011 was similar.  The grievor was a mail room clerk who engaged in a pattern of sexual harassment and sexual assault of a contract employee who cleaned the offices where the grievor worked.  The grievor had grabbed the complainants buttocks on several occasions, and had tried to kiss the complainant in an elevator, over her objections.  The employer investigated the complaint and found that the grievor had, in fact, engaged in sexual harassment and assault of the cleaner.  He admitted the behaviour, but claimed that the complainant had consented.  The employer discharged the grievor for cause.  At arbitration, Arbitrator Weatherill found as a fact that the grievor engaged in 'sexual banter' with the cleaners and that he occasionally grabbed one cleaner's buttocks, and noted that the grievor had previously been asked not to do so.  Acknowledging that the grievor's behaviour was "improper", the Arbitrator nonetheless pointed out that the grievor had ceased harassing one cleaner when she showed him her fist, and that the primary complainant had indicated in her testimony that she did not want the grievor discharged.  He, therefore, concluded that the grievor's actions were not at the severe end of the spectrum of sexual harassment, and substituted a "lengthy period of suspension" for the discharge.

The employer applied for judicial review, and the Divisional Court had to consider whether the Arbitrator's decision was "reasonable".  The Court recognized that not every case of sexual harassment or assault may demand discharge, but found that the grievor had harassed at least two of the cleaners and that he displayed no remorse or insight into his behaviour.  The grievor had offered a form of "apology" to the complainant that demonstrated no awareness of the impropriety of his actions and no commitment to not engage in similar behaviour in the future.  The Court found that the Arbitrator had placed significant weight on two irrelevant considerations (i.e., the fact that the grievor desisted after one cleaner showed him her fist, and that the complainant did not want him to be discharged), and reached a conclusion that was not "defensible in light of the facts and the law". In the result, the Court set aside the award as to penalty and upheld the termination of the grievor.

While it is not everyday that the courts will intervene in the decisions of arbitrators (or other statutory decision-makers), these decisions demonstrate that where those decisions threaten the function of the administrative tribunal system, the courts will step in.  Employers are well-advised to carefully review arbitral decisions, particularly in cases of serious misconduct where termination is not upheld.  If the punishment does not seem to fit the crime, the courts may be called upon to remedy the outcome, and without the necessity of a re-hearing.

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Has your organization received an arbitral award that seems to defy common sense?  Feel free to contact Lance Ceaser to obtain advice and guidance.