The Supreme Court of Canada has just ruled in the case of Hydro-Québec, unanimously reversing the decision rendered by the Court of Appeal of Québec in February 2006. In doing so, the Supreme Court upheld the dismissal of an employee as a result of excessive absenteeism due to an illness, after several unsuccessful attempts to accommodate her.

In this case, the plaintiff had held the position of Sales, Rates and Commercial Programs Clerk for approximately twenty-four (24) months at the time of her dismissal by Hydro-Québec. Suffering from mixed personality disorder with borderline and dependent character traits, the employee had been absent from work for extended periods of time on several occasions during the seven (7) years preceding her termination. As a result, the employer had proceeded to terminate the plaintiff's employment due to her high level of absenteeism and her inability to perform her work duties on a regular basis for the reasonably foreseeable future. In order to make this decision, the employer relied on the opinion of two (2) experts in psychiatry who believed that the plaintiff's work attendance would remain a problem in the future. The Union contested the plaintiff's dismissal by way of a grievance and alleged that the employer did not fulfill its duty to accommodate.

The parties agreed that the plaintiff was suffering from a handicap, namely from a personality disorder resulting in episodes of depression and periods of absenteeism, sometimes for extended periods of time.

Pursuant to the Charter of Human Rights and Freedoms (Québec), an employer has an obligation to accommodate an employee suffering from a handicap, up to the point of undue or excessive hardship.

The arbitrator had initially rejected the grievance and the Superior Court of Québec had confirmed the decision of the arbitrator. The Court of Appeal, while recognizing that the employer had demonstrated much patience and remarkable tolerance towards the plaintiff, nonetheless concluded that Hydro-Québec failed to establish that it had considered all reasonably possible accommodation measures when it terminated the plaintiff's employment. The Court of Appeal held that Hydro-Québec could have created a part-time position for the plaintiff, as had been suggested by her treating physician at the time of her dismissal.

The Supreme Court, however, reversed this decision by indicating that the standard formulated by the Court of Appeal to evaluate undue hardship was erroneous. According to the Supreme Court, if the characteristics of an illness affect the proper operation of a business in an excessive way or if the employee with such an illness remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him, the employer will be deemed to have fulfilled its obligation to accommodate. Moreover, the Supreme Court concluded that the duty to accommodate ceases when the fundamental obligations of the employment relationship cannot be fulfilled by the employee in the foreseeable future.

The Supreme Court also affirmed that the Court of Appeal mistakenly concluded that the duty to accommodate should be assessed at the time that the decision to terminate the plaintiff was made. Rather, the Supreme Court declared that in order to determine if an employer successfully demonstrated an undue hardship, a global evaluation of the accommodation measures should be performed that takes into account the entire period during which the employee was absent. Therefore, the measures taken in the past to attempt to accommodate the plaintiff are relevant in order to determine if the employer has fulfilled its obligation to accommodate.

This decision is good news for employers faced with situations of excessive absenteeism from its employees due to a physical or psychological handicap as it imposes some limits on an employer's duty to accommodate.