Renaud is a Seventh Day Adventist and a cleaner at a school. He cannot work from sundown on Friday to sunup on Sunday. The school says that he can work a special Sunday–Thursday shift but that they have to clear it with the union first. The union rejects this shift as it is against their collective bargaining agreement and says that they will file a grievance with the school if they allow him to work the shift. The idea of promoting Renaud so that he can choose his shifts is also rejected because it violates the agreement. Renaud is willing to work Sunday – Thursday but the school will not go against the union because of the looming grievance so Renaud is fired.
- Does violation of a union collective agreement meet the test for undue hardship?
Appeal allowed, Renaud reinstated.
The court states that simply facing a grievance from a union is not undue hardship. The school cannot pass the second part of the O'Malley test because they have not accommodated to the point of undue hardship. They have a duty to accommodate the individual even if it violates the collective agreement as the British Columbia Human Rights Act (now the Human Rights Code) has higher standing than the collective agreement. They cannot rely on the agreement as an excuse not to respect human rights legislation.
The court also held that both the employer and the union are responsible for accommodating employees. If the union helps to make the rule then they must be a part of the accommodation, and if they do not help make the rule then they still cannot unreasonably stand in the way of accommodation. They also say that the claimant must act reasonably – that is, they cannot expect a perfect solution to their problem and they must accept a reasonable outcome.
- The O'Malley test is upheld.
- Employee morale can be considered in undue hardship.