Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) – Supreme Court of Canada – July 17, 2008
The test for undue hardship is not total unfitness for work in the foreseeable future, but rather where a disability excessively hampers the proper operation of the business or where the disability prohibits the employee from returning to work in the reasonably foreseeable future even though the employer has tried to accommodate the employee.
The recent decision of the Supreme Court of Canada on July 17, 2008 in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) [2008] S.C.J. No. 44 (“Hydro-Québec”) clarifies the test of undue hardship in an employer’s duty to accommodate a disabled employee. The Court stated that the test for undue hardship is not total unfitness for work in the foreseeable future, but rather where a disability excessively hampers the proper operation of the business or where the disability prohibits the employee from returning to work in the reasonably foreseeable future even though the employer has tried to accommodate the employee.
In Hydro-Québec, the employee suffered from a number of physical and mental problems which caused her to miss numerous days of work. At the time of her dismissal, her physician had recommended that the employee stop working for an indefinite period. Additionally, the employer’s psychiatric assessment indicated that the employee would no longer be able to “work on a regular and continuous basis without continuing to have an absenteeism problem as in the past”. When she was dismissed for cause, the employee filed a grievance stating that the dismissal was not justified.
The arbitrator dismissed the grievance since the employer proved that at the time at which the employee was dismissed it was not reasonably foreseeable in the future that the employee would be able to work steadily and regularly as was stated in her employment contract. Additionally, the arbitrator found that the suggestion made by the union’s expert for changes to accommodate the employee would constitute undue hardship on the -employer. The employee applied for judicial review of the arbitrator’s decision.
The Superior Court dismissed the motion. However, the Court of Appeal granted the motion finding that the arbitrator had “misapplied the approach adopted in British Columbia (Public Employee Relations Commission) v. BCGSEU, [1999] 3. S.C.R. 3 (–Meiorin’)…the employer had to prove that it was impossible to accommodate the complainant’s characteristics. Furthermore…the arbitrator should not have taken only the absences into account, since the duty to accommodate must be assessed as of the time the decision to terminate the employment was made”. The employer appealed this decision to the Supreme Court of Canada.
In allowing the appeal, the Supreme Court of Canada stated that “the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory…The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” Additionally, the Court commented on the time of when the duty to accommodate had to be assessed. The Court stated that in McGill University Health Centre, the Supreme Court of Canada “opted to assess the duty to accommodate globally in a way that took into account the entire time the employee was absent”. Therefore, the Court of Appeal was wrong with their finding in this regard.
The decision in Hydro-Québec provides an important clarification on the test for undue hardship in regards to an employer’s duty to accommodate. This is important to both employees and employers. It distinguishes the limits that an employer must go to in order to accommodate an employee’s disability. By clarifying this point, the Court has aided in ensuring that an employer is not burdened by trying to accommodate a disabled employee past what was meant by undue hardship and that an employee receive the proper amount of accommodation short of undue hardship on the employer.