Who invited u(nion)? The British Columbia Supreme Court clarifies the rights of unions to be informed of, and consulted about, accommodation efforts

In a unionized workplace do employers have to involve the union in accommodating employees with disabilities? 

The British Columbia Supreme Court recently answered this question in a case called Telus Communications Inc. v. Telecommunications Workers’ Union, 2015 BCSC 1570.  In a decision that should be welcome by employers, the Court held that unions do not have a general right to be notified of, or to participate in, an employer’s attempts to accommodate its employees except in limited circumstances. 

The issue in the Telus case was whether the employer was able to deal directly with its unionized employees when attempting to accommodate those employees or whether there was a duty to first consult with the union.  In the initial arbitration, the arbitrator sided with the union.  He held that the union was entitled to notice, information and consultation whenever the employer attempted to accommodate an employee.  According to the arbitrator, involving the union in the accommodation helps ensure that a fair and reasonable accommodation is reached.

On appeal, the British Columbia Supreme Court overturned the arbitrator’s decision.  The Court held that a union does not have a general right to participate in the accommodation unless:

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

Unless either these conditions exist or a collective agreement explicitly requires an employer to involve the union in accommodation efforts, accommodation falls within the rights of management to direct and manage the workforce. 

This decision is helpful for employers because it clarifies that unions do not have a general right to be involved with every accommodation.  In most cases employers should be free to deal directly with their unionized employees in crafting an accommodation for those employees.  However, as with any accommodation case, each situation must be assessed on its own facts.  Prior to dealing directly with a unionized employee, employers should consider the following:

• Does the collective agreement explicitly require the employer to engage the union in the accommodation process?
• Has the employee requested union involvement in the accommodation process?
• Does the proposed accommodation require the union’s approval (for example, will it require the union to waive a term of the collective agreement)?
• Has the union participated in creating the discriminatory policy or rule?

If the answer to any of the above is yes, then the employer may have to notify the union and seek its participation in the accommodation process.