The claimant worked for the McGill Health Centre and took a leave of absence after she had a nervous breakdown. Before she returned she was in a car accident and there was no indication that she was ever going to come back to work. The allotted period of accommodation for sick leave agreed to in the collective agreement expired and the Health Centre fired the claimant. The Health Centre claims that the collective agreement set out what amounts to undue hardship and to go further would require them to pass this point. The union argues that the accommodation does not begin until after the negotiated period has expired. The arbitrator dismissed the case, the Quebec Supreme Court upheld this decision and the Quebec Court of Appeal allowed the appeal and sent the case back to the arbitrator.
- What deference should be given to collective agreements in determining what amounts to undue hardship?
Appeal allowed, dismissal justified.
The court held that although the collective agreement must be taken into consideration when figuring out what amounts to undue hardship it is not decisive. In all cases you must assess whether the period allotted for amount to undue hardship, even if there is an agreement between the two parties. They also noted that in many cases these allotments are much more generous than the human rights legislation would allow for. The reason why you must examine the agreements so closely is that you are not allowed to contract out of human rights so, if the allotted period does not accommodate up to the point of undue hardship, then you must go beyond it. However these agreements are generally looked upon positively because it shows that the employer tried to accommodate and to say that they are useless would discourage people from making the agreements.
In this case they determine that the period allotted did amount to the point of undue hardship and therefore the dismissal was justified. This case passes all three parts of the Meiorin test, and therefore the employer is justified in their discrimination on the ground of disability.
In a judgment concurring in the result, Abella J states that there was no prima facie case of discrimination proven in this case. This must be proven before there can be a claim of discrimination brought and that automatic termination cases do not automatically represent prima facie discrimination.
- Agreements allowing for periods of accommodation will be taken into consideration when determining if undue hardship was reached, but they are not conclusive.
- In all cases you must determine if the allotted period was in fact accommodation to the point of undue hardship.
- You cannot contract out of human rights legislation.