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Queen's University

McGill University 

In McGill University Health Centre (Montreal General Hospital) v Syndicat des employe-e-s de l'Hopital general de Montreal, Supreme Court of Canada, 2007, McGill applied a 3-year termination clause to dismiss a secretary who had been absent for over three years, who had been accommodated in various ways by the employer during that time, and who had no reasonable prospects of recovery in the future. The Union grieved the termination, arguing that the employer had failed to accommodate the employee. It  maintained that the employer's assessment of undue hardship should begin after the negotiated three-year period.

The Majority of the Supreme Court of Canada ruled in favor of the employer.  They disagreed with the Union, stating that the assessment of undue hardship should include the negotiated three-year period of sick leave.  The ruled that termination clauses should be considered to be measures of accommodation as they allowed chronically absent employees with disabilities to remain employed (for a limited amount of time) even though they were not working in exchange for remuneration.  However, the Majority warned that it would be discriminatory to apply such general labour standards arbitrarily to all employees with disabilities without first conducting individual assessments and then making a determination of undue hardship.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000