I’ve been watching this news item with interest. Last week, against the advice of its leadership, CUPE 759 members walked off the job upon learning that a coveted position was to be assigned to a non-member employee requiring accommodation, without following the collective agreement’s language around timelines for postings. These members were ordered back to work by the Labour board in short order.
I’ve been piecing together a picture of this matter using news articles and social media snippets here and there. As always, what interests me most is what worker, unions, and employers all seem to know (or not know?) about workplace accommodation. Here are a few items I’ve come up with. (Keep in mind, I am not a lawyer, nor do I play one on TV.)
1. A union’s ability to accommodate one of its members really depends on the essential duties (and functional demands) of the jobs available, along with the abilities of the employee.
2. In workplaces where more than one union is involved and the person requiring accommodation can’t (safely, physically, etc.) return to their usual job, the employer has to find an alternative, within the original union if possible. If it’s not possible, the employer still has to accommodate (and fast, as there is a procedural aspect to this under the law*), and so it has to look at all positions, under any/all unions.
*3. It’s possible that the employer’s procedural duty to accommodate has a shorter window than any posting timeframes captured in a collective agreement (e.g., 10 working days to allow members to apply).
4. Unions (not just employers) have a duty to accommodate in the workplace, to the point of undue hardship, and even if the accommodated employee is outside that union. Members being unable to apply for a position because it’s being assigned to meet the employer’s accommodation duty would not constitute undue hardship for the union.
5. Generally speaking, the accommodation duty (human rights) will trump a collective agreement.
From where I sit, it looks like the employer did the only legal thing it could. That being said, no doubt CUPE 759 members were unaware of the above information, and so they would have naturally seen the employer’s actions as running contrary to the collective agreement. This is doubly so if there is already a general atmosphere of mistrust between labour and management.
Looks like once again, some training and better communication is the answer.
#DisabilityManagement #CDMP # RTWDM #WorkplaceAccommodation #AccommodatingDisability
This was an excellent read. I know it is a tough pill to swallow. However, this is solid reasoning and based on the law. The application is universal for all. If the shoe was on their foot, I am certain that they would appreciate ADA, EEOC guidelines, FEHA and California CRD going to bat for them.
Definitely, there is a lack of training and communication from the Union & HR, before the process, during the process, and at the conclusion of the process.
Thanks for adding to the conversation, Kymberly. I can see that this is an issue for both US and Canadian workplaces alike.