In a unionized workplace do employers have to involve the union
in accommodating employees with disabilities?
The British Columbia Supreme Court recently answered this
question in a case called Telus Communications Inc. v.
Telecommunications Workers' Union, 2015 BCSC 1570.
In a decision that should be welcome by employers, the Court held
that unions do not have a general right to be notified of, or to
participate in, an employer's attempts to accommodate its
employees except in limited circumstances.
The issue in the Telus case was whether the employer
was able to deal directly with its unionized employees when
attempting to accommodate those employees or whether there was a
duty to first consult with the union. In the initial
arbitration, the arbitrator sided with the union. He held
that the union was entitled to notice, information and consultation
whenever the employer attempted to accommodate an employee.
According to the arbitrator, involving the union in the
accommodation helps ensure that a fair and reasonable accommodation
On appeal, the British Columbia Supreme Court overturned the
arbitrator's decision. The Court held that a union does
not have a general right to participate in the accommodation
the union has participated in creating a discriminatory policy
the union's agreement is necessary to facilitate
an employee requests the union's involvement.
Unless either these conditions exist or a collective agreement
explicitly requires an employer to involve the union in
accommodation efforts, accommodation falls within the rights of
management to direct and manage the workforce.
This decision is helpful for employers because it clarifies that
unions do not have a general right to be involved with every
accommodation. In most cases employers should be free to deal
directly with their unionized employees in crafting an
accommodation for those employees. However, as with any
accommodation case, each situation must be assessed on its own
facts. Prior to dealing directly with a unionized employee,
employers should consider the following:
Does the collective agreement explicitly require the employer
to engage the union in the accommodation process?
Has the employee requested union involvement in the
Does the proposed accommodation require the union's
approval (for example, will it require the union to waive a term of
the collective agreement)?
Has the union participated in creating the discriminatory
policy or rule?
If the answer to any of the above is yes, then the employer may
have to notify the union and seek its participation in the
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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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