Introduction

In early 2017 the British Columbia Court of Appeal ruled that unions have no independent legal right, separate and apart from their collective agreement rights, to be involved in every unionised employee's accommodation request.

In Telecommunications Workers' Union v Telus Communications Inc (2017 CanLII 57754 (SCC)), the Supreme Court of Canada dismissed the union's application for leave to appeal that decision. The court's denial of leave to appeal is a victory for employers, employee privacy and the accommodation process.

Facts

The Telecommunications Workers Union (TWU) brought a policy grievance against Telus seeking rights of notice, information and consultation in respect to any request made by a bargaining unit member for an accommodation (eg, disability, family status or religion). The applicable collective agreement did not provide for such rights. Instead, it stipulated that Telus must provide notice to the TWU only in cases where Telus determined that the duty to accommodate required an employee to be transferred to a different role.

Nevertheless, the TWU claimed that it had the right to be involved in all accommodation requests as a matter of law arising from its statutory role as an exclusive bargaining agent. Telus disputed this claim, arguing that it could deal with an accommodation request with the employee directly (ie, without the TWU's involvement), unless:

  • the collective requirement needed the TWU's involvement (eg, 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.

The arbitrator ruled in favour of the TWU. He found that it had a legal right to be notified, informed and consulted in respect to every accommodation request. This conclusion was based on the TWU's role as an exclusive bargaining agent under the Canada Labour Code.

The arbitrator held that this right existed even where an employee did not seek the union's involvement and the accommodation was a straightforward matter that could be implemented without need for the union's agreement. Straightforward accommodations included 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 a union could negotiate limits on the 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. However, he held that the TWU was estopped from asserting its legal rights during the term of the recent collective agreement because of representations that it had made which led Telus to believe that the TWU had agreed to limit its role in the accommodation process.

Telus applied for judicial review to the British Columbia Supreme Court.

First-instance decision

In Telus Communications Inc v TWU (2015 BCSC 1570) the court quashed the arbitrator's decision on two bases. First, it ruled that the 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, it found that the 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 British Columbia Court of Appeal.

Appeal court decisions

In Telus Communications Inc v TWU (2017 BCCA 100) the court of appeal unanimously rejected the union's appeal. It agreed with the British Columbia Supreme Court that the arbitrator had been 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; however, it also expressed support for the Supreme Court's other finding that the arbitrator had been unreasonable to conclude that the collective agreement had not limited the TWU's rights.

The TWU sought leave to appeal to the Supreme Court of Canada. On September 7 2017 the court refused the union's application.

Comment

Employers should be relieved by this outcome. If upheld, the arbitrator's decision would have complicated the accommodation process for all unionised 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 every accommodation request. This would have resulted in significant cost and delay for employers and employees, particularly in situations where the employer is entitled to implement a straightforward accommodation without needing the union's agreement.

The arbitrator's 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 or religious beliefs. For this reason, employees are unlikely to want to broadcast their accommodation requests in the workplace. One example raised by the court of appeal was of an employee requesting time off work to deal with a child entering rehab. Employees commonly seek accommodations directly from a manager and require confidentiality because of the sensitive nature of their request.

By confirming that a union's legal rights in the accommodation process are limited to situations where its agreement is required or the employee requests its participation, the British Columbia courts have affirmed that an employee should generally control the dissemination of information about an accommodation request.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact John DR Craig at Fasken Martineau DuMoulin LLP's Toronto office by telephone (+1 416 366 8381) or email (jcraig@fasken.com). Alternatively, please contact Matthew Larsen at Fasken Martineau DuMoulin LLP's Vancouver office by telephone (+1 604 631 3131) or email (mlarsen@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.