On February 28, 2017, the British Columbia Court of Appeal issued its decision in Telus Communications Inc v Telecommunications Workers’ Union, 2017 BCCA 100. The union’s request for leave to appeal was denied by the Supreme Court of Canada on September 7, 2017.
The issue before the B.C. Court of Appeal, and ultimately the Supreme Court of Canada, was whether the union’s position as bargaining agent for employees gave it the right to participate in all requests for accommodation of a disability in the workplace. The particular case being considered involved requests for ergonomic chairs or other modifications to the work environment.
At arbitration, the union had successfully argued that it had a right to “notice, information and consultation” in respect of all accommodation requests made by bargaining unit employees. The employer’s position had been that union involvement in the accommodation process was not always required, and that the union’s role was limited to situations in which an adjustment to a negotiated term of the collective agreement was required in order to accommodate an employee, or where an employee requested the involvement of the union.
The employer applied for judicial review of the arbitrator’s decision, and the Supreme Court of B.C. found that the arbitrator’s decision had been unreasonable. The union appealed this decision to the Court of Appeal, and argued that a “no discrimination” provision in the collective agreement compelled its involvement in every accommodation. The Court of Appeal disagreed, and found that a union does not have a right to be notified of or to participate in the accommodation process unless: i) the union has participated in creating a discriminatory policy or rule; 2) the union’s agreement is necessary to facilitate the accommodation; or 3) an employee requests the union’s involvement. The Supreme Court of Canada denied leave to appeal.
Accordingly, where a unionized employer receives a request for accommodation, it should consider whether the union has a right to participate. If so, the union should be notified of the request for accommodation and invited to participate in any meetings held to discuss the request. In all cases where union involvement is not legally required, an employer should consider whether the union’s participation would be helpful, or if it is more likely to complicate and prolong the accommodation process.