CCPartners | Blog

Court Tells Union to Mind its Own Business and Not the Employer’s… (at least sometimes)

Earlier this year the British Columbia Court of Appeal issued a decision that should assist unionized employers dealing with accommodating employees. The Court of Appeal in Telus Communications Inc v Telecommunications Workers’ Union 2017 BCCA 100 reversed an arbitration decision and held that during the accommodation process an employer may be able to deal directly with its unionized employees.

At arbitration the Union had successfully argued that it had a right to receive notice from the employer of all medical disability accommodation requests made by employees covered by the collective agreement. The basis for the decision at arbitration was that the certificate of bargaining authority gave the union the right to engage in all requests for accommodation for a medical disability. The arbitrator concluded that failure to involve the union undermined the recognition clause. If the arbitration decision had survived judicial review the union would have had an independent right to notice, information and consultation of all requests.

The good news for employers is that the court did not recognize this freestanding right and found that the employer is only required to engage the union in certain circumstances. Going forward, unionized employers should first consider whether the union is required to receive notice of the request based on the guidelines endorsed by the court. There are three circumstances where an employer must engage the union:

• If the union has participated in creating a discriminatory policy or rule;
• If the union’s agreement is necessary to facilitate accommodation; or,
• An employee request’s the union’s involvement.

When an employer receives a request for accommodation from a unionized employee, it should consider whether the request falls into one of the above three categories or if the collective agreement explicitly requires the union’s involvement. If the request does not engage an alleged discriminatory role or policy, the union’s agreement is not required and the union has not requested representation the employer may choose to directly engage its employee on the accommodation issue.

Employers should keep in mind that even in circumstances where notification to the union is not required there can be value in contacting and working with the union through the accommodation process. Employers should continue to approach each request for accommodation on an individual and fact specific basis. The lawyers at CCPartners have extensive experience in navigating accommodation requests, implementing accommodation plans, and the accommodation process as a whole. Click here for a list of our team members who can assist you with your accommodation questions.