What is the role of the union when an employee needs an accommodation?
As a custodian for the Central Okanagan School District No. 23, Larry Renaud was required to work evening shifts from Monday to Friday. As a Seventh Day Adventist, however, he was required to observe his Sabbath, and therefore not to work, from sundown Friday to sundown Saturday. His employer proposed the creation of a new Sunday to Thursday shift to accommodate Renaud. Since the employer's accommodation involved an exception to the Collective Agreement, it required the union's consent. The union rejected the proposed accommodation and threatened to file a policy grievance if the employer granted the exemption to Renaud. Refusing to act unilaterally, the employer dismissed Renaud when he continued to miss his Friday night shifts. [Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C)]
- In these circumstances, where there has been no attempt to accommodate, is the obligation that custodians work Friday evening shifts considered to be a bona fide occupational requirement ?
- In these circumstances, does disruption of the collective agreement and union opposition constitute undue hardship which relieves the employer of its duty to accommodate the religious beliefs of an employee?
- In these circumstances, is the union in breach of a duty to accommodate?
- The Supreme Court of Canada ruled, following its decision in Central Alberta Dairy Pool, that a requirement is considered to be a bona fide occupational requirement if, and only if, the employer has accommodated the employee to the point of undue hardship. In this case, the attendance requirement discriminated adversely against Renaud, who could not work Fridays because of his religious beliefs. The employer did not accommodate him to the point of undue hardship. Therefore, the Monday to Friday schedule is not a bona fide occupational requirement. It does not provide the employer with a defence to a complaint of religious discrimination.
- The Supreme Court of Canada found that the employer proposed an accommodation, one that altered the terms of the collective agreement, but backed down when the union threatened to file a policy grievance. The threat of a grievance, in and of itself, does not constitute undue hardship. On the other hand, serious disruption of a collective agreement, one that significantly infringes the rights of other employees, could constitute undue hardship. However, in this case, the alteration would have meant that several other employees might have had to change their working schedule to accommodate Renaud. These employees were not canvassed and neither the employer not the union provided any concrete evidence that they would not have consented willingly to the change in schedule. In the opinion of the court, the impact on other employees was therefore minor convenience and not undue hardship. (cf. Central Alberta Dairy Pool, #3) In these circumstances, disruption of the collective agreement and union opposition did not constitute undue hardship. The employer, therefore, was not relieved of its duty to accommodate the religious beliefs of the employee.
- The Supreme Court of Canada ruled that Unions can be found to have discriminated against an employee in two ways: 1) by participating in the creation of an occupational requirement that discriminates, directly or adversely, against the employee and 2) by impeding the reasonable efforts of the employer to accommodate the employee. In this case, the union was found to have doubly discriminated against Renaud because it participated in the formulation of a work schedule that adversely discriminated against him, and it refused to support the employer's reasonable accommodation to change his shift.