May 16, 2017
In this case, the Supreme Court overturned a decision of the Court of Appeal for Québec, clarifying the following points for employers:
- The employer is not required to prove that the employee will be totally unable to perform his or her work in the foreseeable future or that it is impossible to accommodate the employee’s characteristics to establish that its duty to accommodate has been met.
- An employer faced with a case of excessive absenteeism can take the entire situation into consideration, including the disabled employee’s record and all of the efforts already made in assessing its duty to accommodate.
The plaintiff, a unionized Hydro Québec employee, suffered from a number of physical and mental conditions that caused her to miss work on a regular basis. The employer had made several unsuccessful attempts to adjust the employee’s working conditions so that she would be able to perform her work.
At the time of her dismissal on July 19, 2001, she had been off work for over five months, and her treating physician had recommended that she remain off work for an indefinite period.
The arbitrator dismissed her grievance on the grounds that he did not believe the employee would be capable of performing regular and consistent work for the foreseeable future and that the solutions proposed by the union constituted undue hardship.
The Superior Court dismissed the union’s application for judicial review. However, the Court of Appeal allowed the appeal and reversed the arbitrator’s decision. The Court of Appeal concluded that Hydro-Québec had failed to prove that it had made every effort to accommodate the employee. It also indicated that a return to work might be possible with drastic changes to the employee’s working conditions, and the employer had the duty to explore these options. Ultimately, the Court concluded that the employer had not attempted to accommodate the employee to the point of undue hardship.
The Supreme Court disagreed with the reasoning applied by the Court of Appeal on two grounds; the first relating to the standard for proving undue hardship, and the second dealing with the appropriate time for assessing whether the duty to accommodate has been met.
The Supreme Court held that the employer is not required to prove that it is impossible to integrate an employee who does not meet its attendance standards, but only that doing so would result in undue hardship. What constitutes undue hardship can take as many forms as there are circumstances. The employer is not required to change working conditions in a fundamental way, but rather to adjust the employee’s existing working conditions or duties, provided that this can be done without causing the employer undue hardship.
According to the Supreme Court, the Court of Appeal also erred when it held that the duty to accommodate had to be assessed at the point where the decision to terminate is made.
Following its decision in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, the Supreme Court opted for a global evaluation of the duty to accommodate that takes into consideration the entire duration of the employee’s absence.
The Supreme Court therefore allowed Hydro Québec’s appeal, restoring the arbitrator’s initial decision.
Important Effects of the Decision for Employers
Clarifying the Employer’s Burden to Prove Undue Hardship
With respect to the employer’s burden to prove undue hardship, the following principles can be drawn from the Supreme Court’s decision:
- The employer is not required to prove that it is impossible to accommodate the employee’s characteristics, or that the employee will be totally unable to perform his or her work in the foreseeable future;
- A measure that would require the employer to modify working conditions in a fundamental way constitutes undue hardship;
- A measure that would completely alter the essence of the employment contract (i.e., the employee’s obligation to perform work) constitutes undue hardship;
- When, despite the measures taken by the employer, the employee remains unable to resume his or her work for the reasonably foreseeable future, the employer will be justified in terminating employment.
Taking into consideration the entire situation
In practice, this means that all prior unsuccessful attempts to accommodate the employee may serve to demonstrate that the employee will not be able to return to work in the reasonably foreseeable future, even if the employer did not know the nature of the employee’s illness at the time.
Moreover, this principle allows the employer to assess the employee’s enitre attendance file, and it is not required to start its accommodation efforts over with each specific condition diagnosed over time.
The Supreme Court’s decision in Hydro Québec had been cited in a number of decisions since its release in 2008. For example, within BC, Hydro Québec was cited by the Human Rights Tribunal in Rinke v. Grimm’s Fine Foods, 2013 BCHRT 30 for the principle that an employer is entitled to consider a disabled employee’s attendance during accommodation in reaching its decision to terminate. This reinforces the principle that the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.
Rachel Ravary and Martine Bélanger are associates in the Labour and Employment Group at McCarthy Tétrault LLP (www.mccarthy.ca). This article, which was released by e-Alert on July 24, 2008, is reprinted by permission.
Additional information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP (December 2014). The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.