The B.C. Supreme Court has clarified in a judicial review
decision that a union does not have an automatic right to
participate in and be provided with information related to the
process of accommodating a worker due to a protected ground:
Telus Communications Inc. v. Telecommunications
Workers' Union, 2015 BCSC 1570.
In the decision under review, the arbitrator had determined that
a union's exclusive bargaining agency provided it with the
right to represent employees with respect to any terms of
conditions of employment, including accommodation requests. The
arbitrator had considered bargaining evidence whereby the union had
repeatedly attempted to have greater involvement in the
accommodation process included in the collective agreement, but
those proposals had been rejected by the employer. When
addressing this evidence, the arbitrator found that there was no
"mutual intention between the parties to the effect that the
parties have essentially agreed [that] the [u]nion is not entitled
to the right of notice, information and consultation that it seeks
in the present grievance".
In making his finding, the arbitrator emphasized that employees
can often be in vulnerable situations and said:
Issues involving the accommodation
of employees directly relate to a union's authority to
represent its members, and its support amongst employees in the
bargaining unit is fundamentally affected by those employees'
perception of the union's ability to represent [them] in
relation to significant matters grounded in the collective
agreement. Cutting the union out of the accommodation process,
grounded in the discrimination provision of the collective
agreement, conflicts with the union's role as exclusive
bargaining agent under the agreement and the Canada Labour
The employer sought judicial review of this decision stating
that a union may participate in an accommodation in certain cases,
but that those were limited. If an accommodation fell outside of
that limited class, the accommodation process fell within
management's reserved rights or, alternatively, in the instant
case was assigned to the employer through the operation of the
The Court applied the reasonableness standard in examining the
decision. It rejected the expansive nature of the union's
bargaining agency and said in particular:
Telus generally has the right to
direct employees as it considers advisable. The inclusion of
"reasonable accommodation" among the matters within the
purview of management is not manifestly inappropriate or contrary
to [the union's] right to act as the sole collective bargaining
The case law rather firmly supports Telus' view that
"reasonable accommodation" does not fall within the
"negotiating" or "bargaining" mandate of the
[union] except in the circumstances outlined in the case law. The
exceptions are well established: where there has been union
participation in a discriminatory policy or rule; where the
union's agreement is necessary to facilitate the accommodation,
and no alternative can be found; or where an employee requests the
involvement of the union.
The judge did expressly note, however, that the union may be
granted participatory rights in the bargaining process. If such a
right is granted, then so will the requirement to provide the union
with all relevant information regarding the accommodation
This case is important because there is now a bright line in the
general law regarding when a union must be
included in the accommodation process. As the Supreme Court
of Canada has stated, a union is required to assist in an
appropriate accommodation and now the circumstances where that
involvement must occur have been clarified. A union need only
be involved where: (1) the union has participated in creating
a discriminatory policy or rule; (2) the union's agreement is
necessary to facilitate accommodation and no alternative can be
found; and (3) an employee requests union involvement.
Previously printed in the LexisNexis Labour Notes
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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.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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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