Duty to Accommodate
DOI:
https://doi.org/10.25071/1705-1436.144Abstract
Workers traditionally accommodated co-workers. But, as accommodation law developed, tensions emerged. In Meiorin: accommodation is the norm. Employers must eliminate standards, rules, practices, etc. that discriminate on prohibited grounds, up to undue hardship. In the Canadian Human Rights Act, undue hardship includes only cost, health and safety. Other jurisdictions, following Central Alberta Dairy Pool, consider: impact on the collective agreement, other workers’ rights, employee morale, size of operation, workforce and facility adaptability. O’Malley clarifies adverse affect discrimination. A rule, although made in good faith, may discriminate “if it affects a person … differently from others”. Accommodation may override contract provisions (Renaud), including seniority (Goyette). While employers have principal responsibility for accommodation, unions have a role too (Gohm). Unions reduce accommodation tensions by: auditing collective agreements, reviewing accommodation procedures, educating members and leaders.References
Central Alberta Dairy Pool: Central Alberta Dairy Pool v. Alberta (Human RightsCommission), [1990] 2 S.C.R. 489. http://www.chrc-ccdp.ca/en/timePortals/milestones/126mile.asp
CUPW v. Canada Post Corporation: CUPW v. Canada Post Corporation [2001] B.C.J. No. 680 (C.A.).
Gohm: Gohm v. Domtar Inc. and OPEIU, Local 267 [1990], 12 C.H.R.R. D/161 (Ont. Bd. Inq.); affirmed [1992], 89 D.L.R. (4th) 305 (Ont. Div. Ct.).
Goyette: Goyette et Tourville c. Voyageur Colonial Ltd. et Syndicat des employé(e)s determinus de Voyageur Colonial Ltée [1997], 97 C.L.L.C. 230-039 (C.H.R.T.),upheld [1999], 185 D.L.R. (4th) 366 (F.C.-T.D.)http://www.chrtcdp.gc.ca/search/view_html.asp?doid=237&lg=_e&isruling=0
Greater Niagara Regional Hospital: Greater Niagara Regional Hospital [1995], 47 L.A.C. (4th) 366 (Brent).
Grismer: Terry Grismer (Estate) v. The British Columbia Superintendent of Motor Vehicles et al., [1999] 3 S.C.R. 868
Meiorin: British Columbia (Public Service Employee Relations Commission)(BCPSERC) v. The British Columbia Government and Service Employees Union(BCGSEU), [1999], 35 C.H.R.R. D/257 (S.C.C.) www.chrc-ccdp.ca /en/timePortals/milestones/148mile.asp
O’Malley: Ontario (Human Rights Commission) v. Simpson-Sears Ltd. [1985] 2 S.C.R. 536.
O’Sullivan: O’Sullivan & Amcon Management Ltd. [1994] 19 C.H.R.R. D/417(Ont. Bd. Inq.)
Pannu: Pannu v. B.C. Workers’ Compensation Board (No. 2) [2000],38 C.H.R.R. D/494, 2000 BCHRT 56
Renaud: Central Okanagan School District No. 23 v Renaud, [1992] 2 S.C.R 970 www.hrcr.org/safrica/labor/okanagan renaud.html
Fleetwood Ambulance: Thompson v. Fleetwood Ambulance [1995] 96 C.L.L.C. 145,045 (Ont. Bd. Inq.)
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