Duty to Accomodate and the Supreme Court of Canada; Today's Decision in Hydro-Québec

There can be little doubt but that the Supreme Court of Canada is making major changes to employment law in Canada.

The Keays decision a few weeks ago clarified Wallace damages -- whether cutting them back or making them effectively unlimited is not clear -- and today's decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 addressed the duty to accommodate an ill employee and the interaction between an employer's duty to accommodate sick employee and an employee's duty to do work.

In large part the decision turned on the peculiar facts presented; the employee missed 960 days of work between January 3, 1994 and July 19, 2001. That said the Court clearly limited the duty to accommodate and has made it easier to terminate employment for frustration.

While arising in a Quebec union context the Supreme Court's holding would seem directly applicable to other provinces and employment law generally. (Whether the reasoning is broad enough to apply to a Human Rights context is not immediately obvious -- this author thinks likely not as employment is a very different context that the quasi-constitutional Human Rights context but the issue is open.)

Turning to the details of the case the employee had a number of physical and mental problems, and her record of absences indicated that she had missed 960 days of work between January 3, 1994 and July 19, 2001. Over the years, the employer had adjusted her working conditions in light of her limitations.

At the time of her dismissal on July 19, 2001, the complainant had been absent from work since February 8. Her attending physician had recommended that she stop working for an indefinite period, and the employer's psychiatric assessment mentioned that the complainant would no longer be able to [translation] "work on a regular and continuous basis without continuing to have an absenteeism problem as in the past".

The employee filed a grievance, alleging that her dismissal was not justified. The arbitrator dismissed the grievance on the basis that the employer had proven that, at the time it dismissed the employee, she was unable, for the reasonably foreseeable future, to work steadily and regularly as provided for in the contract. Furthermore, the conditions for her return to work suggested by the union's expert would constitute undue hardship.

The Quebec Superior Court dismissed the motion for judicial review of the arbitrator's decision. The Quebec Court of Appeal set aside the Superior Court's judgment, holding that the employer had not proven that it was impossible to accommodate the employee's difficulties. It added that 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 Supreme Court of Canada disagreed holding the test for undue hardship stated by the Court of Appeal was erroneous. The test is not whether it was impossible for the employer to accommodate the employee's difficulties. Although the employer does not have a duty to change working conditions in a fundamental way, it 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. 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 ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

The Supreme Court also held that Court of Appeal erred in holding that the duty to accommodate was to be assessed as of the time the decision to dismiss the complainant was made. It is instead necessary to assess the duty to accommodate globally in a way that takes into account the entire time the employee was absent.