By Christina Catenacci

On July 17, 2008, the Supreme Court of Canada released a decision on the limits of an employer’s duty to accommodate a disabled employee to the point of undue hardship. The court established the standard for assessing undue hardship, and the amount of time that is relevant to determine whether the employer has fulfilled its duty to accommodate. In the case at hand, stemming from Quebec, the court reversed the decision of the Court of Appeal by stating that the employer was justified to dismiss an employee that was absent over two years and a half due to various physical and mental illnesses in a seven-year period. Justice Marie Deschamps wrote in the unanimous 8-0 ruling: “The employer’s duty to accommodate ends where the employee is no longer able to fulfil the basic obligations associated with the employment relationship for the foreseeable future.”  

Background

The complainant was employed with Hydro-Québec. During her time with the company, she suffered from numerous physical and mental problems. For instance, she had suffered from tendonitis, epicondylitis and bursitis; undergone a number of surgical procedures for various problems; taken medication for various other physical problems; and endured episodes of reactive depression and a mixed personality disorder with borderline and dependent character traits.

As a result of her physical and mental problems, the complainant missed 960 days of work between January 3, 1994, and July 19, 2001. One of the main problems was that her personality disorder resulted in deficient coping mechanisms. This caused her relationships with supervisors and co-workers to be difficult. During these years, the employer adjusted working conditions so the complainant could do light duties and gradually return to work following a depressive episode. Even after an administrative reorganization, during which the complainant’s position was abolished and she was no longer required, the employer assigned her to a different position.

The complainant was dismissed on July 19, 2001. At that time, she had been absent from work since February 8, 2001, and had been seen by her attending physician, who recommended that she stop working for an indefinite period. The employer also obtained a psychiatric assessment, which concluded that the complainant would no longer be able to work on a regular and continuous basis without continuing absenteeism, as in the past.

The termination letter referred to her absenteeism, her inability to work on a regular and reasonable basis, and the fact that no improvement in her attendance at work was expected.

The complainant filed a grievance and alleged that her dismissal was not justified.

(More background information, including the arbitration decision, Superior Court decision and the Court of Appeal decision is available online.)

Supreme Court of Canada Decision

The court stated that the issue in this case was the interpretation and application of the undue hardship standard.

The court reproduced the test in Meiorin regarding undue hardship:

An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

The third part of the test was the main one in contention. The court stated that the goal of accommodation is to ensure that an employee who is able to work can do so. This means that the employer has to accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment. The court stated, “The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”

Rigid rules have to be avoided since each solution depends on the circumstances of the case. If a business could, without undue hardship, offer an employee a variable work schedule or lighten his or her duties, or even authorize staff transfers, to ensure that the employee could do his or her work, it would have to do so to accommodate the employee.

The court said, “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.”

The employer’s duty to accommodate ended where the employee was no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. If the employer terminated the employee at this point, the termination would not be considered discriminatory.

In addition, with respect to the time relevant to the determination of whether the employer fulfilled its duty to accommodate, “a decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation”. The court stated, “neither the employer nor the employee may disregard the past in assessing undue hardship”.

Therefore, the Supreme Court of Canada found that the Court of Appeal erred on two points in law, one relating to the standard for assessing undue hardship and the other relating to the time that is relevant to the determination of whether the employer has fulfilled its duty to accommodate.

View the entire Supreme Court of Canada decision.

What employers should do given this principle

The ruling, applicable to all jurisdictions since it was handed down by the Supreme Court of Canada helps clarify employers’ duty to accommodate employees who face discrimination on prohibited grounds found in human rights legislation across Canada, such as race, sex, age and disability, unless the accommodation causes “undue hardship”, a test that has caused much confusion in courts.

An employer has the duty to accommodate to the point of undue hardship, to arrange the employee’s work environment or duties to enable the employee to do his or her work.

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. As stated by the Supreme Court of Canada, the duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees’ fundamental rights and the rule that employees must do their work. 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.

The decision to dismiss an employee because the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future must be based on an assessment of the entire situation. All past events and attempts to accommodate must be taken into consideration.

That is why it is important for employers to document and track the accommodation process from the beginning to the end.

 
Christina Catenacci LL.B., is assistant editor at HRinfodesk.com–Canadian Payroll and Employment Law News.

Originally published in HRinfodesk–Canadian Payroll and Employment Law News and Developments July 2008.

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