Unions do not have an independent legal right, separate and apart from their collective agreement rights, to be involved in every unionized employee's accommodation request. This was recently confirmed when the Supreme Court of Canada (SCC) dismissed a union's application for leave to appeal a decision of the BC Court of Appeal in Telecommunications Workers' Union v. Telus Communications Inc (PDF). This welcomed outcome provides certainty about an employer's obligations in the accommodation process and ensures that employers can address straightforward accommodations without getting bogged down by unnecessary procedural delays. It also helps to protect the privacy of employees who are making accommodation requests.

Background

The Telecommunications Workers Union (TWU) brought a policy grievance against TELUS Communications Inc. (TELUS) seeking rights of notice, information and consultation in respect of 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 only required to provide notice to the TWU 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:

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

Arbitrator Chris Sullivan ruled in favour of the TWU. He found that the TWU had a legal right to be notified, informed and consulted in respect of any and every accommodation request. He based this conclusion on the TWU's role as exclusive bargaining agent under the Canada Labour Code. He 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 BC Supreme Court. In Telus Communications Inc. v. TWU, 2015 BCSC 1570 (PDF), 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, Justice 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 BC Court of Appeal. In Telus Communications Inc. v. TWU, 2017 BCCA 100 (PDF), the Court of Appeal unanimously rejected the Union's appeal. The Court of Appeal agreed with Justice 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 Justice 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 of 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 due to 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 BC courts affirmed that an employee should generally control the dissemination of information about their accommodation request.

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