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Conference Report: Lancaster House’s Human Rights and Accommodation in the Workplace
by Ruthanna Dyer
4 Mar 04 - Employers and unions
are dealing with accommodation issues in a different climate following the
Supreme Court of Canada decision in favour of Meiorin, in which the Court
ruled that any standard applied to job performance must be
non-discriminatory and related to the essential core duties of the job.
This case has become the bench mark for accommodation in Canada.
The format of the Lancaster House
conferences is a series of panel discussions on a particular topic.
Members of the panel include a moderator, employer, arbitrator and
union counsel or officer. The dialogue is interesting as all sides explore a topic and
respond to questions from the management, union and mediator participants.
A rich resource of material is presented with citation and reprints
of critical cases that are discussed.
Topics discussed at this
conference included: attendance management policies and the duty to
accommodate, the limits of undo hardship, the arbitrator’s right to rule
on human rights cases, accommodation in areas other than disability, and
the legal responsibilities of unions and employers in respect to
accommodation. Key principles that were presented included the right and
responsibility of arbitrators to rule on human rights cases, the extent of
undo hardship, and the responsibilities of unions to act without
discrimination in providing fair representation to members seeking
accommodation. The main principle
that was repeatedly stressed is that the Human Rights Codes are the floor
beneath which a Collective Agreement cannot negotiate.
A Union cannot “give away” human rights
at the table and the Collective Agreement cannot be used to support
a position of human rights discrimination.
The Saturday session was a
half-day session on managing accommodation in the workplace and was a
“hands on” problem solving session using real case scenarios.
This was the most informative and helpful session for me because it
dealt with the type of work a union steward does with respect to
accommodation. The session was ably
facilitated by Marg Creen, disability specialist from Manulife, Elaine
Newmann, arbitrator and Anne Gregory, counsel for Manitoba Government
Union.
On a somewhat ironic note: it is of interest to note that no arrangements were made to accommodate persons with disabilities at this conference. When I raised my concerns to the Lancaster House staff, they very quickly assured me that their practices would be changed. I raise this not to embarrass Lancaster House, but rather to demonstrate how pervasive ableism is in our society.