A recent Supreme Court of Canada decision clarifies the meaning of the duty to accommodate to the point of “undue hardship” articulated in the Court’s earlier decision in Meiorin (British Columbia (Public Service Employee Relations Commission) v. BCGEU).
In Hydro-Québec v. Syndicat des employé-e-s de techniques professionelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), an employee with various physical and mental health problems was dismissed for chronic absenteeism after she missed 960 days of work in less than eight years. The employer had adjusted her working conditions to accommodate her limitations throughout her employment. At the time of dismissal, she had been absent from work for five months, her physician had recommended that she stop working, and the employer had obtained a psychiatric assessment which concluded she would no longer be able to “work on a regular and continuous basis”.
The Union’s termination grievance was dismissed at arbitration, and then followed by a judicial review decision and two appeals. When it heard the case, the Supreme Court of Canada endorsed the arbitrator’s original decision dismissing the grievance and upholding the employee’s discharge. In this regard, the Court said “…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.” The Court held that in the case of chronic absenteeism, if the employer shows that the employee will be unable to resume her work in the reasonably foreseeable future despite appropriate measures taken to accommodate her, the employer will have established undue hardship.
With respect to the timing of accommodation, the Court held that the adequacy of attempts to accommodate should not to be assessed only as of the time the decision is made to dismiss an employee; rather, the accommodations must be assessed in a global and contextualized manner that takes into account all of the time the employee was absent.
This decision is good news for employers attempting to manage employees with chronic absenteeism issues similar to those described in this case.