Hydro-Québec Makes Employers A Bit Less Nervous About Employee Accomodation

The Supreme Court’s recent decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000, 2008 SCC 43, reinterprets the common law account of employers’ duty to accommodate disabled employees in the workplace. The court has not drastically departed from its past jurisprudence, but rather has reiterated the need for clearer language.

The complainant (represented in the suit by her union, the Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, Local 2000) suffered from numerous maladies, both physical and mental in nature. As a result of her medical problems, she missed 960 days of work between January of 1994 and July of 2001 (or slightly more than half of seven and a half years’ worth of working time). Over the years, Hydro-Québec repeatedly adjusted her working conditions to compensate for her medical limitations (light duties, incremental returns to work after medical episodes, et cetera). Furthermore, following a corporate reshuffling where the complainant’s position was eliminated, Hydro-Quebec offered her a position she was not owed (on basis of seniority).

On February 8th of 2001, the complainant began a prolonged and final absence from her job on the advice of her physician, who recommended that she stop working indefinitely. On July 19th, Hydro-Québec sent a letter to the complainant informing her of her dismissal based on her inability to work on a “regular and reasonable” basis and their belief that they did not expect her attendance at work to increase. The complainant filed a grievance in response.

The arbitrator dismissed the grievance, deciding that Hydro-Québec could terminate the complainant’s contract of employment if it could prove that “the complainant was unable, for the reasonably foreseeable future, to work steadily and regularly as provided for in the contract”. Although the union offered expert evidence that a complete change in work environment could potentially eliminate much of the stress upon the complainant and improve her performance, the arbitrator responded by stating that given the complainant’s past performance at work, such a “complete change” would be needed on an unfortunately regular basis.

The union appealed to the Quebec Superior Court, which noted that the complainant’s health qualified as a handicap under the Quebec Charter of Human Rights and Freedoms, and that since employment had been terminated because of the complainant’s health problems, that Hydro-Québec and the arbitrator both had a duty to accommodate those health problems reasonably. However, Matteu J. of the Court found that Hydro-Québec’s actions had not been discriminatory.

The union appealed, and the Quebec Court of Appeal ruled in their favour, stating that the arbitrator had improperly applied the test laid out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (the “Meiorin” case). That test reads as follows:

An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

The Supreme Court reversed the Quebec Court of Appeal’s decision, finding for Hydro-Québec. Justice Deschamps noted that the issue at hand comes from the SCC’s previous use of the word “impossible” in crafting the Meiorin test, pointing out that the purpose of the test is not to rewrite the employee/employer relationship entirely, but to prevent discrimination:

The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

The SCC found that Hydro-Québec had taken appropriate steps to accommodate the complainant, considering that over a period of a number of years, Hydro-Québec had attempted to mitigate potentially harmful working conditions to the complainant and had been forthcoming in attempting to cooperate with her in maintaining her health. (The SCC is, if anything, being under-generous to Hydro-Québec here, considering that they let the complainant work a full-time job on what amounted to a part-time basis for over seven years.)

This is an entirely reasonable and balanced decision from the SCC as regards workplace disability discrimination. The modification of the “impossible” terminology from Meiorin, which was necessary given the amount of strain it placed on employers in such a situation, does not make the error of giving too much power to employers. Instead, it simply reiterates Meiorin’s intent in different, more accommodating language. It is thus a welcome elaboration on the responsibilities of employers towards disabled employees.