On July 17, 2008 the Supreme Court rendered a highly anticipated decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ).1

Employers can finally heave a sigh of relief. The Court of Appeal’s decision had them seriously worried: how would they be able to show that it was “impossible” to accommodate an employee with a major absenteeism problem? The Supreme Court has set the record straight.

THE FACTS

The employee was dismissed due to a very high absenteeism rate over a seven-year period and the very low likelihood of any improvement in her work attendance. Her personal history was certainly worrisome: she underwent five surgical procedures over a four-year period, had four major depressions and attempted to commit suicide twice. In addition, she was in a situation of conflict with her supervisors and with her family.

Hydro-Québec had allowed the employee to come back to work gradually, on a part-time basis for two weeks. In addition, Hydro-Québec had assigned her to three different positions over the years in an attempt to try to deal with her medical and physical limitations. Following a reorganization in which her third position was abolished and she became surplus, Hydro-Québec nevertheless assigned her to a position in another city. This endeavour was not successful: the absenteeism continued, despite many meetings and warnings.

The employee was seen by medical experts four times before being dismissed. Even the two psychiatrists retained by the Union were pessimistic: the situation could only improve if the stressors arising out of her relationship with her immediate family and those related to her work were eliminated.

THE ARBITRAL DECISION

Arbitrator Gilles Corbeil2 dismissed the grievance. In his view, the employer acted properly — with patience and even tolerance — toward the employee and the conditions suggested by the Union’s expert for her return to work would constitute undue hardship since [Translation] “…the [e]mployer would have to periodically, on a recurring basis, provide the complainant with a new work environment, a new immediate supervisor and new co-workers to keep pace with the evolution of the ‘love-hate’ cycle of her relationships with supervisors and co-workers.”

Besides, how could Hydro-Québec have eliminated stressors related to the employee’s family environment?

THE SUPERIOR COURT’S DECISION

The Court did not interfere in the arbitrator’s decision.3

THE COURT OF APPEAL’S DECISION

The Court of Appeal set aside these decisions: the patience and tolerance shown by Hydro-Québec for seven years did not constitute accommodation. The corporation should have considered a final accommodation by finding an administrative solution to the work conflict. The Court even suggested a permanent part-time schedule, which would have involved creating a status that did not exist anywhere in the organization.

THE SUPREME COURT’S DECISION

Coming on the heels of the Court’s very recent decision in Honda Canada Inc. v. Keays,4 this decision reiterates a basic principle which seemed to have been forgotten, namely, that the essence of the contract of employment is the employee’s duty to perform work in exchange for remuneration.

The Court stated that proving that it is impossible to accommodate a handicapped employee is necessarily related to “undue hardship” and the term “impossible” should not be applied in isolation.

In practice, what does this mean? Aware of the difficulties of application, the Court tried to clarify its thinking:

i) the duty to accommodate has an individualized nature and rigid rules must be avoided;

ii) the employer does not have a duty to change working conditions in a fundamental way;

iii) the employer has a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties;

iv) however, if a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties or authorize staff transfers, it must do so.

The second important part of this decision is the timing of the assessment. It is quite clear that from now on the entire time an employee has been absent and all steps taken during this period must be taken into consideration, regardless of whether the employer realized that its employee was suffering from a “handicap”. Thus, the past cannot be disregarded when assessing undue hardship.

LESSONS LEARNED

Employers cannot ignore their duty to accommodate. Accommodation measures must take into consideration the particular characteristics of the employee and the business. Before dismissing an employee for excessive absenteeism, all avenues that could help the employee reintegrate the workplace and work on a reasonable basis must be explored. Patience and tolerance are still virtues.

The Supreme Court does not exclude the possibility of considering variable work schedules or arranging duties. Quite the contrary! However, the term “impossible” does not have the absolute meaning given to it by the Court of Appeal.