What is a trade union’s duty to accommodate in the workplace?
Supreme Court of Canada considers a union’s role in the duty to accommodate under human rights legislation
In Central Okanagan School District No. 23 v. Renaud, the Supreme Court of Canada laid out the roles of each workplace party in fulfilling the duty to accommodate.
When the Central Okanagan School District refused to work out a schedule that would allow custodian Larry Renaud, a Seventh-day Adventist, to take Fridays evenings off work, he filed a human rights complaint against the employer and his union. He maintained that the employer discriminated against him based on religion, and failed to accommodate him as required by the British Columbia Human Rights Act.
The B.C. Human Rights Tribunal held that both the employer and the union had discriminated against Renaud. That decision was overturned by the B.C. courts. Renaud appealed to the Supreme Court of Canada.
The Supreme Court’s decision
The Supreme Court of Canada restored the Tribunal’s decision. It held that an employer has a duty to accommodate an employee to the point of undue hardship.
The Court held that trade unions have an obligation to cooperate in the search for accommodation. However, their role in the accommodation process is different from an employer’s. A union will become a party to the discrimination if it participated in the formulation of the work rule that has a discriminatory effect on the complainant, or if it impedes the employer’s reasonable efforts to accommodate. Where a union is a party to the discrimination, it has a joint responsibility with the employer to seek to accommodate the complainant. The employer and the union may be held equally liable if nothing is done.
However, an employer cannot simply propose the least expensive or disruptive measures from its point of view, if those measures disrupt of the collective agreement or negatively affect the rights of other employees. Where an employer insists on such measures, the union may be justified in refusing to agree. However, the union should propose other solutions that are less onerous from its point of view.
Different considerations apply when a union is not a party to the discrimination, but contributes to it by failing to co‑operate in implementing a reasonable accommodation. In that case, a union’s duty to accommodate only arises when the employer has exhausted all reasonable solutions, no other reasonable accommodation can be found, and the union’s involvement is needed to make the accommodation possible.
Significantly, the Court also held that an employee has a duty to cooperate in the accommodation process. While the employee does not have to come up with a solution, they must provide the facts of the discrimination to the employer and cooperate with any reasonable solution. The employee is not entitled to a perfect solution. If they do not cooperate in implementing a reasonable solution or refuse to accept reasonable accommodation, their complaint will be dismissed.
Steven Barrett represented the intervener Canadian Labour Congress.