A recent case from the Alberta Court of Appeal considered this
question in the context of an employee with Asperger's syndrome
working at a call centre but, unfortunately, did not provide a
definitive answer. Although the decision suggests that the duty to
accommodate can be less onerous for probationary and short service
employees, the threshold for establishing undue hardship is onerous
and is always judged on a case by case basis. Therefore, employers
should carefully consider the circumstances before taking the
position that accommodation cannot continue (or commence).
In Telecommunications Workers Union v Telus Communications
Inc., 2014 ABCA 154 ("Telus"), a technical support
employee with Asperger's syndrome was dismissed within the
90-day probationary period outlined in the collective agreement. On
his application form, the employee had indicated that he had a
disability; however, the form did not request additional
information about the nature of the disability or whether
accommodation was required. Over the course of the probationary
period, performance issues were observed through in-person
monitoring as well as with random recorded calls. The grievor
scored well below the Telus policy and the employee was
The union alleged that the performance issues and resulting
termination were due to Asperger's syndrome, arguing that Telus
failed to accommodate the grievor's condition by not placing
him in a more suitable position. Telus maintained that the grievor
did not request accommodation and that, in any event, accommodation
was impossible in the circumstances.
The arbitrator recognized the impact of the employee's
disability on his performance and its correlation with his
dismissal but dismissed the grievance on the basis that
insufficient information was provided to Telus for it to assess the
issue of accommodation. In the circumstances, Telus' conduct
was not discriminatory because Telus did not have actual knowledge
that the employee required accommodation. Further, no accommodation
that would allow the grievor to meet performance standards was
available and, the arbitrator concluded, there was no obligation to
find a job within the Telus network for the grievor (since he was
only a probationary employee).
The decision was upheld by the Court of Queen's Bench on
judicial review and subsequently by the Alberta Court of Appeal
("Court"). Despite finding that a seemingly neutral
policy applicable to all employees can be discriminatory even where
the employer has no knowledge of the disability (i.e. adverse
effect discrimination), the Court found that conforming to the
policy was a bona fide occupational requirement and
accommodation of the grievor would constitute undue hardship.
Ultimately, the Court accepted Telus' submission that there was
no possible accommodation within the employee's position and
did not accept that Telus was required to consider accommodation of
a probationary employee outside of the position for which the
employee was hired.
What this means for employers
Employers need to be aware that an employer's lack of
knowledge of an employee's disability will not serve to protect
the employer from an adverse effect discrimination claim.
In discharging the duty to accommodate on the basis that a policy
or practice is a bona fide occupational requirement, employers have
They adopted the standard for a purpose that is rationally
connected to the performance of the job.
The standard was adopted in an honest and good faith belief
that it was necessary to the fulfillment of that legitimate
The standard is reasonably necessary to that purpose and it is
impossible to accommodate the employee without undue hardship.
This is a useful case for employers as it suggests that the duty
to accommodate a probationary employee may not be as onerous as it
might be for longer service employees because accommodating
probationary employees does not require considering positions
beyond that for which the employee has been hired. That said, it is
critical that employers carefully examine each individual situation
where the need for accommodation arises.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
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On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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