A win for employers: Supreme Court rejects union’s effort to obtain right of consultation in accommodation process

by John Craig and Matthew Larsen

Do unions have an independent legal right, separate and apart from their collective agreement rights, to be involved in every unionized employee’s accommodation request? This question was answered earlier this year by the British Columbia Court of Appeal, which ruled that unions have no such right.

Recently, in Telecommunications Workers’ Union v. Telus Communications Inc. the Supreme Court of Canada (SCC) dismissed the union’s application for leave to appeal that decision. The SCC’s denial of leave to appeal is a victory for employers, for employee privacy, and for the accommodation process.

Background

The Telecommunications Workers Union (TWU) brought a policy grievance against TELUS seeking rights of notice, information, and consultation in respect to any request made by a bargaining unit member for an accommodation (disability, family status, religion, etc.). The applicable collective agreement did not provide for such rights; instead, it stipulated that TELUS was required to provide notice to the TWU only in cases where TELUS determined that the duty to accommodate required an employee to be transferred to a different position.

Nevertheless, the TWU claimed that it had the right to be involved in any and every accommodation request as a matter of law arising from its statutory role as exclusive bargaining agent. TELUS disputed the TWU’s claim, arguing that it could deal with an accommodation request directly with an employee without the TWU’s involvement unless:

  1. the collective requirement required the TWU’s involvement (e.g. in the case of a transfer for accommodation purposes);
  2. the TWU’s agreement was required to amend the collective agreement to implement an accommodation; or
  3. the employee requested the TWU’s involvement.

Arbitrator Chris Sullivan ruled in favor of the TWU. He found that the TWU had a legal right to be notified, informed, and consulted in respect to any and every accommodation request. He based this conclusion on the TWU’s role as exclusive bargaining agent under the Canada Labour Code.

The arbitrator held that this right existed even where the employee did not seek the union’s involvement and the accommodation was a “straightforward” matter that could be implemented without the need for the union’s agreement. Examples of straightforward accommodations would include providing an employee with an ergonomic mouse or modifying the lighting in an employee’s workspace.

The arbitrator went on to find that an employer and union could negotiate limits on a union’s legal right to be involved in the accommodation process. He held that no such limit had been negotiated between TELUS and the TWU, despite the fact that the issue had been discussed in detail during previous rounds of collective bargaining. He held, however, that the TWU was estopped from asserting its legal rights during the term of the current collective agreement because of representations it had made that led TELUS to believe that the TWU had agreed to limit its role in the accommodation process.

Court decisions

TELUS applied for judicial review to the British Columbia Supreme Court. In Telus Communications Inc. v. TWU, 2015 BCSC 1570, Justice McEwan quashed the arbitrator’s decision on two bases. First, he ruled that the arbitrator’s conclusion that the TWU had a legal right to be involved in all accommodations was unreasonable and inconsistent with the weight of arbitral case law that overwhelmingly found the opposite.

Second, McEwan found that the arbitrator’s conclusion that TELUS and the TWU had not limited the TWU’s rights in the collective agreement was unreasonable. The court explained that on the face of the collective agreement the parties had agreed that the TWU had the right to be involved in the accommodation process only in cases involving transfers.

The TWU appealed to the British Columbia Court of Appeal. In Telus Communications Inc. v. TWU, 2017 BCCA 100, the court of appeal unanimously rejected the union’s appeal. The court of appeal agreed with McEwan that the arbitrator was unreasonable in concluding that the TWU had a legal right to be involved in all accommodations.

The court of appeal ruled that this was sufficient to decide the matter but nonetheless expressed support for McEwan’s other finding that it was unreasonable for the arbitrator to conclude that TELUS and the TWU had not limited the TWU’s rights in the collective agreement.

The TWU sought leave to appeal to the SCC. On September 7, 2017, the SCC refused the union’s application for leave to appeal.

Significance

Employers should be relieved by this outcome. If upheld, the arbitrator’s decision would have seriously complicated the accommodation process for all unionized employers in Canada. Employers seeking to respond to requests for accommodation would have been hindered by a legal duty to inform, notify, and consult with unions in respect to each and every accommodation request. This would have resulted in significant cost and delay for both employers and employees, particularly in situations where an employer is entitled to implement a straightforward accommodation without needing the agreement of the union.

The decision also failed to respect the privacy of employees submitting requests for accommodation. Accommodation requests often arise due to sensitive matters involving health, family circumstances, and religious beliefs. For this reason, employees typically do not want to broadcast their accommodation request within the workplace. One example, actually raised by the court of appeal, would be an employee requesting time off work to deal with a child entering rehab. It is common for employees to seek accommodations directly from a manager and to request confidentiality because of the sensitive nature of the request.

By confirming that a union’s legal rights within the accommodation process are limited to situations where the union’s agreement is required or where the employee requests the union’s participation, the British Columbia courts affirmed that an employee should generally control the dissemination of information about an accommodation request.

Fasken Martineau DuMoulin was counsel to TELUS throughout, with the team consisting of John Craig, Chris Pigott, and Matthew Larsen.

About John Craig and Matthew Larsen:
John Craig is a partner who practises exclusively in the area of labour, employment and human rights law. He provides proactive strategic advice to employers, and represents them in collective bargaining and before arbitrators, labour relations boards, human rights tribunals, and the courts. Matthew is an associate in the firm’s Labour, Employment & Human Rights practice group where he advises a variety of organizations on a wide range of issues involving all aspects of labour, employment and human rights law. He also advises clients regarding privacy issues and has experience conducting workplace bullying and harassment investigations.
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