On February 28, 2017 the British Columbia Court of Appeal issued a decision that should be welcomed by unionized employers dealing with accommodating employees. In Telus Communications Inc. v. Telecommunications Workers’ Union, 2017 BCCA 100 the issue was whether the employer was able to deal directly with its unionized employees when attempting to accommodate those employees or whether there was a duty to first consult with the union.
The Union’s position was that the certificate of bargaining authority gave it the right to engage in all requests for accommodation for a medical disability. In the case before the Court the Union said this included a requirement it be consulted about the ergonomics in the employer’s workplace.
In the initial arbitration, the arbitrator sided with the union. He held that the union was entitled to notice, information and consultation whenever the employer attempted to accommodate an employee. According to the arbitrator, involving the union in the accommodation helps ensure a fair and reasonable accommodation is reached.
On appeal, the British Columbia Supreme Court overturned the arbitrator’s decision. The Court held that a union does not have a general right to participate in the accommodation unless:
- the union has participated in creating a discriminatory policy or rule;
- the union’s agreement is necessary to facilitate accommodation; or
- an employee requests the union’s involvement.
The Court of Appeal agreed with the lower Court’s ruling. The effect of this is that unless the three conditions identified above by the British Columbia Supreme Court exist or a collective agreement explicitly requires an employer to involve the union in accommodation efforts, accommodation falls within the rights of management to direct and manage the workforce. Employers have no general obligation to involve the union in accommodation discussions.
This decision is helpful for employers because it clarifies that unions do not have a general right to be involved with every accommodation. In most cases employers should be free to deal directly with their unionized employees in crafting a reasonable accommodation. However, as with any accommodation case, each situation must be assessed on its own facts.
Prior to dealing directly with a unionized employee, employers should consider the following:
- Does the collective agreement explicitly require the employer to engage the union in the accommodation process?
- Has the employee requested union involvement in the accommodation process?
- Does the proposed accommodation require the union’s approval (for example, will it require the union to waive a term of the collective agreement)?
- Has the union participated in creating the discriminatory policy or rule?
If the answer to any of the above is yes, then the employer may have to notify the union and seek its participation in the accommodation process.
Of course, there may be other reasons why the employer would want the union involved in a given case. With this decision, employers have more guidance regarding when they can choose to proceed directly with the employee.