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Home My WebLink About2014-3708.Union.17-04-20 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-3708 UNION#2014-0999-0140 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel HEARING SUBMISSIONS October 14, 2016; February 15, 2017 April 3, 2017 - 2 - Decision [1] The union has filed a policy grievance dated November 19, 2014. It reads: The Union grieves the Employer has violated the OPS Collective Agreement including but not limited to Article 2, 3, 22.9, 31A.8.2, 32, 16.2, 42, 43, 44, 70, 71, Appendix 4, Appendix 5, and Appendix COR14. The Union further grieves that these policy and program documents violate the provisions of the Ontario Human Rights Code, the Freedom of Information and Protection of Privacy Act and the Personal Health Information Protection Act, and specifically, without limiting the generality of the foregoing, their privacy protection provisions; and any other legislation as the Union may advise. These violations are alleged in that the Employer has implemented policy and program changes contained in the following series of documents: 1. The Revised Health Information Program Guide, dated September 19, 2014 (MGS); 2. The draft revised Request for Information Form, undated (MGS); 3. The Health Reassignment Program Guide (June 2014) (MGS); 4. A June 2014 version of the Disability Accommodation Policy (Public Service Commission Directive MGS) In addition, the employer has posted a Request for Proposals, as set out in a document entitled “Acquiring Comprehensive Vocational Assessment Services – Key elements to be included in RFS/RFP”. [2] While the grievance raises a number of issues, the parties agreed to deal only with one issue in this phase of the proceeding. Broadly stated, this aspect of the grievance is about the extent of the union’s right to participate in policy-making and accommodation of employees’ medical restrictions. The parties agreed that in determining this aspect of the grievance the Board should apply Article 30 of the current collective agreement, even though the grievance pre-dates it, and further that the Board should confine itself to answering nine specific questions. [3] The relevant portion of Article 30 of the collective agreement reads: 30. Where a supervisor or other Employer representative intends to meet with an employee: . . . - 3 - e) for matters related to the development, implementation and administration of an accommodation or return to work plan; . . . the employee shall have the right to be accompanied by and represented by a union representative. The Employer shall notify the employee of this right and advise the employee and the Union of the time and place for the meeting. If no union representative is reasonably available to meet at the time established, the Employer may set a meeting within the next twenty-four (24) hours taking into consideration, to the extent possible, the union’s availability. [4] The following documents were put into evidence: The Disability Accommodation Policy, the Health Information Program Guide and the Health Reassignment Program Guide. It is agreed that all of these were created by the employer unilaterally, and that they are applied generally to all individuals employed in the OPS, not only to employees in the bargaining unit represented by the union. Union Submissions [5] With regard to the Disability Accommodation Policy, (“policy”) it is the union’s position that the employer should develop a separate policy for bargaining unit employees, and that such policy should be prepared in consultation with the union. This would recognize and respect the union’s status as exclusive bargaining agent. [6] The policy at 5.19 provides that “At the outset of the process, represented employees shall be advised of their right to bargaining agent representation”. Counsel submitted that at the earliest opportunity the employer must make it very clear to employees that they are entitled to union representation throughout the accommodation process. The present policy is inadequate in that regard. Thus at 5.20 managers are obliged to discuss accommodation options with the employee before determining that the employee’s disability related needs cannot be accommodated. There is no provision that the employee is entitled to union representation at the time accommodation options are discussed with the employee. - 4 - [7] Similarly, the policy states that the manager has responsibility to “monitor and revise employment accommodation/return-to-work plans in cooperation with the employee, to respond to changing employee and operational needs”. Counsel submitted that this does not recognize the union’s right to be involved whenever an accommodation, or a change in the accommodation, is proposed. Counsel pointed out that while the policy sets out the rights and responsibilities of managers, disabled employees and specialists, there is no provision setting out any role for the union in this regard. [8] The union’s position is that as a matter of right, the union must be involved in all discussions and meetings relating to accommodation of employees in its bargaining unit. Its view is that an employee has no option to exclude the union. Union counsel pointed out that the policy describes its purpose to be, to set out how the employer “will provide timely and effective employment accommodation and accessibility for persons with disabilities in accordance with its legal obligations”, including those under specific legislation, and “collective agreement obligations”. However, under “Responsibilities” the policy describes the responsibilities of employees and various levels of management in the accommodation process, but there is no mention of any responsibility for the union. [9] The Health Information Program Guide (“Guide”) states that it applies “to all OPS employees who have an occupational or non-occupational disability” among others. The program is described as “the process to systematically collect and manage health information as well as to set out the roles and responsibilities of the parties”. Section 1.4 of the Guide sets out a number of reasons why the employer needs health information. The reasons include, “To provide the manager with relevant information to determine continuation of benefits” and “To help the employer make appropriate employment-related decisions. (e.g. employment accommodation and return-to-work planning)”. The Guide further states that failure to provide the employer with health information will affect the employer’s ability to provide timely and effective employment accommodation and/or short-term sick leave entitlement. Union counsel acknowledged that the - 5 - Guide explicitly provides that an employee can request union representation at any time during the information gathering process, including at meetings with managers about accommodation. However, he submitted that union representation should be mandatory in every case, and not only upon request by the employee. [10] Counsel referred to the terms of the Guide relating to medical certificates. Where an employee submits a medical certificate relating to an absence from work due to health reasons, and accommodation or return to work has to be determined, the guide provides that the manager should contact the HR Specialist for assistance. There is no requirement that the union be consulted. This fails to recognize the union’s status as the employee’s exclusive bargaining agent. [11] Similarly, while the Guide provides that a return-to-work and/or employment accommodation plan, including review periods, will be developed by the manager “in consultation with the HR Specialist and employee, as well as the bargaining agent for represented employees”, the union is to be consulted only if the employee requests union representation. The union’s view is that union involvement in the development of these plans for bargaining unit employees should be mandatory in every case and should not depend on a request by the employee. [12] Counsel pointed out that the Guide states that the manager has a responsibility to inform employees of their rights and responsibilities relating to the Health Information Program, including accommodation and return-to-work. It also states that the manager has responsibility to inform bargaining unit employees that they have “the option of bargaining agent representation”. Counsel submitted that in these circumstances also, union representation should be mandatory in every case, and not at the option of the employee. [13] Union counsel pointed out that the Guide describes in detail the “process” a manager is required to follow in requesting an employee to undergo an - 6 - independent health evaluation or medical examination. That process does not include any mention of union involvement. [14] Counsel acknowledged that the Guide provides that “At the employee’s request, and as applicable”, the employee’s bargaining agent may support the employee in the Health Information Program Process. However, it was the union’s position that the union’s right in that regard should not depend on a request by the employee. [15] Counsel also expressed the union’s concerns about the Health Re-assignment Program Guide. (“HRP Guide”). It describes the program as follows: “The Health Re-assessment Program is the process of reassigning an employee to another vacant position (either in his/her home ministry or elsewhere in the OPS) when he/she is permanently incapable of performing the essential duties of his/her home position. Within the Ministries, the Health Re-assignment Program is the means to achieve this form of employment accommodation”. It envisages that the manager at the home ministry will have “on going communication with the employee”, but does not require any communication with the union. [16] The HRP Guide further provides that the Disability Accommodation Specialist would “Act as primary contact for the manager and employee throughout the health reassignment process, engaging HR and bargaining agent partners as necessary”. The union’s position is that the specialist should engage the union throughout the process, and not only as he/she deems necessary. As exclusive bargaining agent the union has a right to be so engaged. Similarly, the HRP Guide provides that the Disability Accommodation Specialist would “respond to inquiries from bargaining agents” during the health reassignment process. The union submits that merely responding to union inquiries is inadequate. The union, as exclusive bargaining agent, has a right to be informed of any new information and/or developments throughout the process. - 7 - The Law [17] Union counsel submitted that the law supports the broad right of representation it seeks, based on “three legal pillars”. The first is the fundamental principle that the language in the collective agreement is paramount in determining the role of the union in accommodation of bargaining unit employees. In his view, article 30 supports its position. Sub-section (e) provides that where a manager meets with an employee “for matters related to the development, implementation and administration of an accommodation or return to work plan”, the employee has “the right to be accompanied by and represented by a union representative”. It also provides that “the employer shall notify the employee of this right and advise the employee and the union of the time and place for the meeting”, and that if no union representative is available at the time fixed for the meeting, the meeting has to be rescheduled. [18] Counsel argued that “matters related to the development, implementation and administration of an accommodation or return to work plan” is extremely broad language. The union’s primary position, based on that language, is that article 30 gives the union a right to be involved in every meeting that comes within sub section (e), and that the obligations imposed on the employer are mandatory. That is, each time such a meeting is scheduled with the employee, the union must be notified of the time and place of the meeting, and the union is entitled as a matter of right to participate and represent the employee. The requirement that the meeting must be rescheduled if a union representative is not available at that time, according to union counsel, indicates the intention that the union has a right to attend such meetings. This is a right which flows from the union’s status as exclusive bargaining agent and the employee cannot waive that right. [19] In the alternative, counsel submitted that, if the Board disagrees with the foregoing interpretation of Article 30(e), the provision is clear that even if an employee is entitled to waive union representation at meetings coming within sub-section (e), each time a meeting is scheduled the employer must nevertheless advise the employee of the right to union representation, and the - 8 - employee must make his/her election each time. There cannot be a general waiver of union representation at all meetings. Moreover, even if the employee elects not to be represented by the union, the employer has a mandatory obligation to inform the union of the time and place of any meeting coming within Article 30(e). Counsel submitted that the union has an interest in being aware of the employer’s dealings in accommodating and returning employees to work. Therefore, the union must at least be aware when meetings take place, even if it is not entitled to attend and participate without the employee’s consent. [20] The second “legal pillar” the union relies on is its status as the exclusive bargaining agent for employees in the bargaining unit. While union counsel cited statutory, judicial and arbitral authorities to support that status, it is not useful or necessary to review those since that status itself is not disputed by the employer. The disagreement is about the extent of the union’s representation rights in relation to accommodation which flows from that status. [21] The third legal pillar the union relies on is the principle that in a unionized environment the accommodation process involves a tri-partite relationship between the disabled employee, the employer and the trade union. Counsel relied on numerous provisions in a policy document dated October 13, 2016, published by the Ontario Human Rights Commission which indicate that unions have legal obligations with respect to accommodation of employees, and that non-compliance would expose them to legal liability. The union also relied on the following authorities: Re Riverdale Hospital, [2000] 93 L.A.C. (4th ) 195 (Surdykowski); Re Medis Health Pharmaceutical Services Ltd. [2001] 100 L.A.C. (4th ) 179 (Kirkwood); Renaud v. Central Okanagan School District No. 23, [1992] S.C.R. 970 (S.C.C.); Re Commercial Bakeries Corp. [2003] 121 L.A.C. (4th) 398 (Shime); Re District School Board Ontario North East, [2012] 225 L.A.C. (4th ) 219 (Davie); Re City of Toronto, [2015] 124 C.L.A.S. 283 (Knopf) [22] Upon being questioned by the Board, counsel stated that none of the authorities he relies on has specifically addressed the issue of whether or not the employee has the option of declining union representation during the accommodation - 9 - process or whether as a matter of right the union is entitled to be involved regardless of the employee’s wishes. Following his presentation on the judicial and arbitral authorities, union counsel made submissions as to how the Board should answer each of the nine questions. [23] Question 1: Does the Union’s right to participate in the accommodation and return-to-work process include the right to be involved in developing the Process/protocol in which the workplace parties share employment accommodation, return-to-work and health reassignment information? Counsel submitted that the Disability Accommodation Policy, the Health Information Program Guide and the Health Reassignment Guide fail to recognize that the union is the exclusive bargaining agent for employees in the bargaining unit. While there may have been some consultation with the union at the time they were prepared, the union had not agreed to any of them. It was the union’s position that the right of representation accorded to the union by article 30(e) includes the right to be involved in the development of policy relating to accommodation, including return-to-work. Since the law recognizes that the union is the exclusive bargaining agent, and that accommodation is a tri-partite process with rights and obligations imposed on all three parties, the failure to involve the union in developing general accommodation policy as well as individual employee accommodation plans from the very beginning is contrary to law. The Board was urged to so find. [24] Question 2: Does the Union’s right to participate in the accommodation and return-to-work process include the right to review and monitor requests for health information to employees’ treating health professionals? Union counsel submitted that employees with mental and/or physical disability are particularly vulnerable. They are concerned about their health, and in most cases, also about the possibility of losing their jobs. In this vulnerable state, an employee is called upon to decide whether to provide private and confidential - 10 - medical information requested by the employer. If the request is too broad, (for example it seeks information on diagnosis) and confidential information is disclosed, the damage cannot be remedied after the fact. Therefore, the union must be able to review requests for medical certificates and information from employees’ doctors, and to advise the employee as to whether the employer is legally entitled to the information sought. This entitlement flows from its status of exclusive bargaining agent, the tri-partite nature of the duty to accommodate, as well as from Article 30(e) of the collective agreement. Therefore, the Board was urged to answer question 2 in the affirmative. [25] Question 3 Does the Union’s right to participate in the accommodation and return-to-work process include the right to participate in developing and approving employment accommodation and return-to-work plans? Union counsel submitted that in developing an accommodation plan and searching for an appropriate accommodation, the appropriate solution may involve changing or waiving certain provisions in the collective agreement. This cannot be done without the consent of the union. Counsel submitted that the union’s right to be involved in the matters referred to in question 3 flows directly from Article 30(e), and is also consistent with the principles of exclusive bargaining agency and the tripartite nature of accommodation. Therefore, the question must be answered in the affirmative. [26] Question 4 Does the Union’s right to participate in the accommodation and return-to-work process include the right to participate in the search for accommodation solutions generally, including accommodations in the employee’s home position, return-to-work, health reassignment placements, and to determine conversion from temporary to permanent accommodation or the end of the accommodation/health reassignment process? Union counsel submitted that this question raises the same considerations as in question 3, since it is part of the process of searching for solutions. For the same - 11 - reasons as in question 3, it is imperative that the union is directly involved in the matters specified in question 4. He relied on submissions he made in relation to question 3 and submitted that question 4 also should be answered in the affirmative. [27] Question 5 Does the Union’s right to participate in the accommodation and return-to-work process include the right to participate in developing a protocol for assessing minimal qualifications or comparing limitations/restrictions to job demands? Union counsel submitted that this question also relates to “implementation” of accommodation referred to in Article 30(e). That provision gives the union the right to be involved in any discussions in that regard. He pointed out that in the development of policies and programs also, there may be a need to alter or waive collective agreement rights. Therefore, the union’s involvement is not only useful, but legally required. Thus the answer to this question must be in the affirmative. [28] Question 6 Does the Union’s right to participate in the accommodation and return-to- work process include the right to participate in the development of employee accommodation/return to work policies, programs, etc.? Union counsel stated that for the same reasons as in question 2, union participation in all meetings and correspondence referred to in question 6 must be mandatory. [29] Question 7 Can the Union be precluded from discussions and/or correspondence between members and the Employer as the result of a Waiver of Representation form, or should Union participation and representation be mandatory for all meetings and correspondence. Union counsel submitted that the union’s right to participate any time an accommodation is proposed is critical. To deny the union this right would be - 12 - contrary to the union’s status as exclusive bargaining agent and the tri-partite nature of the accommodation process. It would also be inconsistent with the arbitral principle that the employer is prohibited from bargaining with individual employees. Counsel’s primary submission was that the union has the right to participate any time an accommodation is proposed, regardless of what that proposal involves. In the alternative, he submitted that the union must have that right at least where the proposed accommodation impacts on any collective agreement right of the disabled employee or any other employee in the bargaining unit. [30] Question 8 Does the Union have the right to participate at any time an accommodation is proposed? Counsel relied on the submissions made in relation to question 7, and submitted that for the same reasons the Board should answer this question also in the affirmative. [31] Question 9 Do the Employer’s duties under the accommodation and return-to-work process include a duty to be proactive and keep the bargaining agent informed of its accommodation efforts? Is the Employer required to communicate with the Union and provide detailed updates of its accommodation efforts? Counsel submitted that the union is the exclusive bargaining agent and a party to the tri-partite accommodation process. Therefore, the union ought to be kept updated of the developments in that process. It should not be kept in the dark. Therefore, this question should be answered in the affirmative. [32] In concluding, union counsel submitted that the Board must respect the fundamental principles that the union is the exclusive bargaining agent for employees in the bargaining unit, that there can be no bargaining with individual employees, and that accommodation is a tri-partite process with rights and obligations on all three parties. He emphasized that if the union is involved in the - 13 - process from inception to implementation, many of the disputes that lead to grievances and litigation could be avoided. Employer Submissions [33] Employer counsel submitted that while the union certainly has an important role to play in the accommodation process, its claim in the grievance goes far beyond what it is legally entitled to. She pointed out that the judgement of the Supreme Court of Canada in Renaud (supra) is the seminal authority on this subject. Following that judgement there are three “situations” when the union has a right and an obligation to be involved in the accommodation of an employee in its bargaining unit. They are: (1) where the collective agreement provides for it (2) Where it may become liable for either negotiating a discriminatory provision or for obstructing a reasonable accommodation proposed by the employer. (3) Where an accommodation plan for a disabled employee potentially impacts upon a collective agreement right of that employee or some other bargaining unit employee, or otherwise requires changing or waiving a provision of the collective agreement. It was the employer’s position that its accommodation policies and processes recognize and respect the union’s role in all of those circumstances. [34] Counsel submitted that the employer’s policy documents are issued in the exercise of its management rights. Those policies may only be applied to individuals employed by the crown. The employer may, through its policies and processes, impose responsibility and accountability in relation to accommodation on its employees. However, the employer lacks authority, through its policies and processes, to impose on the union, any responsibility or accountability beyond what is imposed by law. Therefore, even if it wanted to, the employer cannot unilaterally impose an expanded role for the union in the accommodation process, because an expanded role comes with expanded responsibility and potential liability. It can be done only to the extent it is negotiated and agreed to in the collective agreement. - 14 - [35] Employer’s counsel submitted that Article 30(e) is the only collective agreement provision relating to union participation in the accommodation of an employee. She emphasized that the right to union representation in Article 30(e) is conferred not on the union, but on the disabled employee. The provision clearly states that “the employee shall have the right to be accompanied by and represented by a union representative”. It gives the employee the right to elect to be represented if he/she so wishes. In order to permit the employee to make the election, the employer is obligated by Article 30(e) to notify the employee of the right to be represented. If, and only if, the employee elects to be represented by the union, the article imposes an obligation on the employer to inform the union of the time and place for the meeting and to consider the union’s availability, so that it can represent the employee at the meeting. [36] Counsel submitted that the union’s claim that it has an independent right under Article 30(e) to be advised of any meetings and to represent the employee at such meetings regardless of his/her wishes, deprives the employee of the right clearly conferred on him/her to elect whether or not to be represented. That interpretation reads out the words “the employee shall have the right” from Article 30(e). She argued that if the intent was that the union would always have the right to represent at such meetings regardless of the employee’s wishes, the parties would not have included an explicit obligation on the employer to notify the employee of his/her right to be represented. [37] In addition to the Supreme Court of Canada judgement in Renaud, counsel relied on the following authorities: Re National Steelcar Limited, [2005] 136 L.A.C. (4th ) 238 (McLaren); Re St. Paul’s Hospital, [2007] 96 L.A.C. (4th) 129 (Jackson); Re Hart-Day, GSB File 2007-1117 etc. (Dissanayake); Telus Communication Inc. v. Telecommunications Workers’ Union, (2015) BCSC 1570 (CanL11), Supreme Court of British Columbia: Appeal dismissed (2017) BCCA 100 (CanL11) (Court of Appeal of British Columbia). [38] Employer counsel submitted that while there is no arbitral or judicial authority directly dealing with the issue of whether or not a union has a right to be involved - 15 - in the preparation of policy and process documents, there is no legal basis for the union’s claim in that regard. She submitted that making rules and policies is a management right under Article 2 of the collective agreement. Arbitrators have consistently recognized this management right, subject to the union’s right to grieve if a rule or policy fails to meet certain conditions set out in KVP Co. (1965), 16 L.A.C. 73 (Robinson). Nor is there any provision in the collective agreement that gives the union a right to co-write rules and policies relating to accommodation. [39] Employer counsel reviewed the policies/guides in question, pointing out provisions therein which are compliant with the union’s right of participation in the accommodation process in the three situations recognized in Renaud. Each document provides that if any provision in the document is in conflict with a term in the collective agreement, the collective agreement prevails over the policy. For example, the Disability Accommodation Policy at 3.2 states that the Human Resource Management Directive applies to the policy. That directive at 7.6 provides that the collective agreement prevails over any directive and at p. 16 provides that if a union’s consent is required to alter a provision of the collective agreement in order to accommodate an employee, the union has to be consulted. Counsel submitted that this is clearly consistent with Renaud. [40] Counsel submitted that discussion of accommodation options with an employee does not constitute individual bargaining unless the option being discussed is potentially discriminatory or affects some collective agreement right of that employee or other employees. She argued that Re Commercial Bakeries (supra) and Re City of Toronto (supra) were both cases where the employee requested, but was denied the right to be represented by the union. To the contrary, under the employer’s policies it is obliged to inform the employee that he/she has the right to union representation. The employer agrees that if representation is requested, the employer must allow union representation, and the employer does so. Counsel submitted that global statements in Re Commercial Bakeries and Re City of Toronto the union relies on must be read in light of the context and circumstances of the particular cases. Those decisions do not stand for the - 16 - proposition that any discussion with an employee about accommodation amounts to individual bargaining, or that the union always has a right to participate in those discussions. If those decisions stand for those propositions, they would be wrong and contrary to Renaud. [41] Employer counsel referred to the statement in the Ontario Human Rights Commission’s Policy on Ableism and Discrimination based on Disability at p. 22, which the union relies on, to the effect that “In employment, unions and professional associations are required to take an active role as partners in the accommodation process, share joint responsibility with the employer to facilitate accommodation, and support accommodation measures regardless of collective agreements, unless to do so would create undue hardship”. She argued that even this non-binding policy statement does not say anything more than what Renaud held, namely that in the absence of undue hardship unions must not put up provisions in a collective agreement as a barrier to an otherwise reasonable accommodation. She pointed out that the foot-note 211 attached to the Commissions statement states that Renaud “sets out the obligations of unions”. This in fact confirms that a union’s rights and obligations relating to the accommodation process are those set out in Renaud. [42] On the specific questions put to the Board, employer counsel submitted that the union would be entitled to participate in the accommodation process, but only if the employee requests union representation pursuant to article 30(e). To allow the union to participate against the wishes of the employee would result in a breach of the employee’s privacy rights. As for the union’s claim of a right to be involved in developing accommodation and return to work processes, counsel submitted that it is a management right of the employer. The union has no right to be involved or to co-write those, because those are not, like collective agreements, joint agreements. If the employer, in the union’s view, creates and follows a flawed policy it is open to the union to grieve. [43] Counsel submitted that the right to review and monitor health information requests from employees’ treating health professionals claimed in question 2 - 17 - would only apply if the employee requests union representation under Article 30(e) in a particular case. [44] Counsel argued that the right to participate in developing and approving employment accommodation and return to work plans claimed in question 3, would be available only in three circumstances. First, where the employee requests union representation. Second, where the employer’s proposal may potentially impact a collective agreement right of the employee or other employees. Third, where a term of the collective agreement is discriminatory and requires a waiver from the union. [45] On question 4, counsel submitted that Renaud, and other authorities such as Re St. Paul’s Hospital, (2001) 96 L.A.C. (4th) 129 (Jackson) at para. 51, are clear that except in limited circumstances, unions have no right to be involved in the search for accommodation, and that as a general matter that is a matter for the employer to determine. [46] As for question 5, counsel submitted that the development of protocols for assessing minimal qualifications or comparing limitations/restrictions to job demands is clearly a management right. If the union views the employer’s action as contrary to law or the collective agreement, it has the right to grieve. [47] Employer counsel’s position on question 6 is also to the effect that the development of accommodation and return to work policies, programs etc. is strictly a matter of management rights, and that the union may grieve if it deems appropriate. [48] On question 7, counsel pointed out that the union’s position is that it is entitled to participate in every discussion and correspondence relating to accommodation between the employer and an employee, regardless of that employee’s wishes or the issues involved in the particular accommodation. Counsel submitted that this would completely ignore Article 30(e). The law requires union involvement only where the accommodation may impact some collective agreement right. In that event, the employer is required to consult with the union, and the union is - 18 - required to cooperate. The mere possibility that in a given case the employer may fail to recognize the possibility of impact on the collective agreement does not give the union a legal right to participate in every case. If the employer in a given case does not involve the union when its involvement is required to waive a term of the collective agreement the employer may be in breach of its procedural obligation and the union may take action as it deems necessary. [49] On question 8, the employer’s position is that the union has no legal right to participate at any time an accommodation is proposed, and that it should negotiate such a right if it wishes to be so involved. [50] As for question 9, counsel submitted that on a macro level the union has no general right to be kept informed and updated about the employer’s accommodation efforts. However, if the employee had requested union representation, the union would be involved and would be aware of the developments. Union Reply Submissions [51] Union counsel reiterated that the extent of the union’s right to participate in the accommodation process must turn on Article 30(e). It is broadly worded. He reiterated that the union’s primary position is that article 30(e) gives the union the right to attend and fully participate in all meetings convened to deal with matters listed in the provision. If that was not the intention, the employer would not have been required to inform the union of the time and place for the meeting and to take into account the union’s availability in scheduling the meeting. In the alternative, counsel submitted that if the Board finds that the union does not have a right to participate in the meetings, at the very least Article 30(e) requires that the employer inform the union of every meeting of the type described in the article. - 19 - Analysis [52] Union rights to participate in the accommodation and return to work process may be derived from the law, namely legislation as interpreted by courts and arbitration decisions, or negotiated terms in a collective agreement. As stated in Re Riverdale Hospital (supra) at para. 25 “The rights, obligations and duties of a union and an employer are imposed generally by statute, and more specifically by the collective agreement they have bargained.” Therefore, it is necessary first to ascertain the union’s statutory rights as interpreted in the case law, and then determine whether such rights are expanded by Article 30(e) of the collective agreement. [53] The seminal case on this subject is the judgement of the Supreme Court of Canada in Renaud v. Central Okanagan School District (supra). While Renaud involved accommodation of religious beliefs, it is accepted that the principles established therein equally apply to accommodation of disability. The Court reviewed the respective positions taken by the parties, and at paragraphs 41-47, wrote as follows: 41 These submissions raise for determination the extent of a union's obligation to accommodate and how the discharge of that duty is to be reconciled and harmonized with the employer's duty. These are matters that have not been previously considered in this Court. 42 As I have previously observed, the duty to accommodate only arises if a union is party to discrimination. It may become a party in two ways. 43 First, it may cause or contribute to the discrimination in the first instance by participating in the formulation of the work rule that has the discriminatory effect on the complainant. This will generally be the case if the rule is a provision in the collective agreement. It has to be assumed that all provisions are formulated jointly by the parties and that they bear responsibility equally for their effect on employees. I do not find persuasive the submission that the negotiations be re-examined to determine which party pressed for a provision which turns out to be the cause of a discriminatory result. This is especially so when a party has insisted that the provision be enforced. In this respect, I am in agreement with the majority of the Ontario Divisional Court in Office and Professional Employees International Union, Local 267 v. Domtar Inc., Ontario Divisional Court, March 19, 1992, unreported. That case dealt with a - 20 - provision in a collective agreement which required the complainant to work one Saturday in six for four hours. This conflicted with her religious beliefs. The minority view expressed by Campbell J. was that the inclusion of the Saturday work schedule was merely a recognition by the union of the company's policy in this regard. The majority concluded, however, that the presence of the provision in the agreement was a barrier to the continued employment of the complainant, and the union, having aided in the creation of the barrier, was jointly liable to her. 44 Second, a union may be liable for failure to accommodate the religious beliefs of an employee notwithstanding that it did not participate in the formulation or application of a discriminatory rule or practice. This may occur if the union impedes the reasonable efforts of an employer to accommodate. In this situation it will be known that some condition of employment is operating in a manner that discriminates on religious grounds against an employee and the employer is seeking to remove or alleviate the discriminatory effect. If reasonable accommodation is only possible with the union's co-operation and the union blocks the employer's efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination. In these circumstances, the union, while not initially a party to the discriminatory conduct and having no initial duty to accommodate, incurs a duty not to contribute to the continuation of discrimination. It cannot behave as if it were a bystander asserting that the employee's plight is strictly a matter for the employer to solve. I agree with the majority in Office and Professional Employees International Union, Local 267 at p. 13 that "Discrimination in the work place is everybody's business". 45 The timing and manner in which the union's duty is to be discharged depends on whether its duty arises on the first or second basis as outlined above. I agree with the submissions of the respondent union and C.L.C. that the focus of the duty differs from that of the employer in that the representative nature of a union must be considered. The primary concern with respect to the impact of accommodating measures is not, as in the case of the employer, the expense to or disruption of the business of the union but rather the effect on other employees. The duty to accommodate should not substitute discrimination against other employees for the discrimination suffered by the complainant. Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which would have this effect. Although the test of undue hardship applies to a union, it will often be met by a showing of prejudice to other employees if proposed accommodating measures are adopted. As I stated previously, this test is grounded on the reasonableness of the measures to remove discrimination which are taken or proposed. Given the importance of promoting religious freedom in the workplace, a lower standard cannot be defended. - 21 - 46 While the general definition of the duty to accommodate is the same irrespective of which of the two ways it arises, the application of the duty will vary. A union which is liable as a co-discriminator with the employer shares a joint responsibility with the employer to seek to accommodate the employee. If nothing is done both are equally liable. Nevertheless, account must be taken of the fact that ordinarily the employer, who has charge of the workplace, will be in the better position to formulate accommodations. The employer, therefore, can be expected to initiate the process. The employer must take steps that are reasonable. If the proposed measure is one that is least expensive or disruptive to the employer but disruptive of the collective agreement or otherwise affects the rights of other employees, then this will usually result in a finding that the employer failed to take reasonable measures to accommodate and the union did not act unreasonably in refusing to consent. This assumes, of course, that other reasonable accommodating measures were available which either did not involve the collective agreement or were less disruptive of it. In such circumstances, the union may not be absolved of its duty if it failed to put forward alternative measures that were available which are less onerous from its point of view. I would not be prepared to say that in every instance the employer must exhaust all the avenues which do not involve the collective agreement before involving the union. A proposed measure may be the most sensible one notwithstanding that it requires a change to the agreement and others do not. This does not mean that the union's duty to accommodate does not arise until it is called on by the employer. When it is a co-discriminator with the employer, it shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect. 47 In the second type of situation in which the union is not initially a contributing cause of the discrimination but by failing to co-operate impedes a reasonable accommodation, the employer must canvass other methods of accommodation before the union can be expected to assist in finding or implementing a solution. The union's duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found. [54] The union referred to a number of arbitration awards relating to a union’s right to be present at meetings where discipline/termination of an employee is discussed. While I have read those it is not useful to review or even list them. Counsel relied on observations made by arbitrators in those awards, about the importance of the union’s role. In each of those awards there was specific language requiring union representation at disciplinary meetings. The comments by the - 22 - arbitrators were made in light of that specific language. Therefore, those comments are not relevant nor of any assistance in the instant proceeding. [55] The union relied heavily on the award in Re Commercial Bakeries (supra). There Arbitrator Shime described the issue to be “… whether an injured employee, during meetings with the employer to discuss modified work or a return to work, is entitled to union representation” (para.4). The union’s position is set out at para. 5 as follows: 5 The Union submitted that it was the exclusive bargaining agent for the employees and had a duty to fairly represent these employees, and also it was required to comply with the Human Rights Code when representing employees. The Union claimed that in order to meet its statutory obligations it must be involved in solutions where the Company was seeking to alter the working conditions of individual employees through an offer of modified work (emphasis added) [56] At paragraphs 7-9, the arbitrator concluded as follows: 7 After duly considering the evidence and argument, it is my view that the Union has the right to represent members in their dealings with the employer in cases where an employee is injured or disabled and there are attempts to accommodate the employee with modified work, and where there is any kind of adjustment being made with respect to the employee’s hours of work and working conditions, including remuneration. Also, the Union is entitled to represent employees where an issue arises concerning the employees return to work. The basis of my decision derives from both the Union’s exclusive right to represent employees as well as its duty under Human Rights legislation concerning an employee’s right to be accommodated because of a disability. I now turn to those considerations. 8 Pursuant to Article 2.01 of the Collective Agreement, the Union is recognized as the sole collective bargaining agent for all the employees of the Company in a radius of up to 80 miles of Metropolitan Toronto, with certain exceptions that are not here relevant. The nature of the relationship between the employer, the union and the employees has been defined by the Supreme Court of Canada in Syndicat Catholique des Employes de Magasins de Quebec, Inc. v. Cie Paquet Ltée (1959), 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346 at p.353-354 and McGavin Toastmaster Ltd. v. Ainscough 1975 CanLII 9 (SCC),[1976] 1 S.C.R. , 718, 54 D.L.R. (3d) . The relevant impact of those decisions on this case is that Union recognition stands “at the forefront of the substantive terms of the Collective Agreement” and the Collective Agreement tells the - 23 - Employer on what terms it must conduct its relations with its employees. Also, the Employer is bound to regulate its relationship with its employees according to the agreed terms of the Collective Agreement and “there is no room left for private negotiations between employer and employee”. The arbitration decisions also confirm that the employer has no right to bypass the Union in dealing with individual employees. See e.g. Atomic Energy of Canada Ltd. and Society of Professional Engineers and Associates (Re) (2000) 90 L.A.C. (4th) 129 at p.142 (O.B. Shime, Q.C.). For the employer to claim that it has the right to deal with an individual employee without the presence of the union is tantamount to individual bargaining with the bargaining unit member and denies the employee the substantive right of representation in matters which are of significant consequences to that employee. 9 Also, the Union’s obligation concerning employee accommodation has been dealt with by the Supreme Court of Canada in Renaud v. Board of School Trustees, School District No. 23 (Central Okanagan) and the Canadian Union of Public Employees, Local 523 et al [1992] 2 S.C.R. at p.970. While Renaud was a matter which dealt with the duty to accommodate for religious reasons under Human Rights legislation, it is my view that the duty of the Employer and the Union is the same in cases where there is a duty to accommodate because of injury or illness. In Renaud the Court indicated that there were circumstances where the Union had a duty to cooperate with the Employer in arriving at reasonable solutions to problems. If the Union is not present when solutions are being discussed, it will not be able to comply with its duty under the relevant Human Rights legislation. (Emphasis added) [57] With regard to the union’s duty in relation to accommodation and return to work, arbitrator Shime wrote: 11 In effect, the Union’s duty is both to ensure that an injured employee is not being discriminated against because of his/her injury and also to ensure the accommodation of the employee is reasonable in the circumstances. Further, the Union has a responsibility to ensure that an injured employee can return to useful employment and must cooperate fully in finding him/her accommodation. See e.g. Cambridge Brass and USWA, Local 4045 (Choquette) 1999, 82 L.A.C. 4th, 284 (S.M.Beck) 12 Also, the Union must consider whether the impact of accommodation creates an undue hardship for the Company. Parenthetically, I might add the phrase i.e. “undue hardship to the Company” is to be read consistent with the concept of undue hardship referred to in Renaud, where the Court said that consideration of undue hardship involves a concern for the impact on other employees as well as a concern with the actual interference with the rights of other employees. In effect, the Union has a - 24 - duty to consider the impact of accommodation on both the Company and on the other employees whom it represents. 13 Further, where the employer is considering the duty to accommodate, it may involve changing, altering or modifying the working conditions of a particular employee. While not exhaustive, the consideration by the employer may include the nature of the work to be performed, the hours that an employee is to work, whether there is to be a work-hardening program in which the number of hours that an employee works and the particular type of work is increased or altered over the course of time. These considerations may also have an impact on an employee’s wages and benefits and pension rights. 14 Article 13.01(b) which is relevant to the matter at hand provides as follows: 13.01 (a) The Company shall attempt to make reasonable accommodation for older employees of long service, or those who suffer physical disability and, in either case, can no longer discharge the full requirements of their jobs. To do so, the wage provisions of this Agreement may not apply. All such cases will be discussed with the Union Committee before action is taken. (b) The Company will do everything in its power to help employees on W.S.I.B. claims retain their jobs. That article contains language that might become an issue between the employee and the employer. For example, an issue may arise whether the Company has made reasonable accommodation for the employee. Another issue may arise whether an employee can no longer discharge the full requirement of his/her job, and a third issue may arise as to the appropriate wage for the accommodated job. Surely the Union has the right to participate in these matters to ensure that the employee’s interests are protected. 15 It is also of significance that Article 13.01(a) provides that the wage provisions of the agreement may not apply in accommodation cases. Accordingly, for the employer to meet with the employee alone in a situation where the negotiated wage provisions of the collective agreement may not apply and other wages are substituted is tantamount to individual bargaining which was rejected by the Supreme Court of Canada in Syndicat Catholique des Employes de Magasins de Quebec, Inc. v. Cie Paquet Ltée, supra. Again, where the potential exists for the employer to alter an employee’s negotiated wages the Union is entitled to be present to represent that employee. (Emphasis added) [58] In Re District School Board Ontario North East, (supra) the union had grieved that the placement of the grievor upon her return to work and her accommodation - 25 - constituted discrimination. The union also raised the issue of union representation as follows: 107 The Union argued also that the Employer’s failure to involve the Union in any accommodative measures was in and of itself a violation of the grievor’s human rights and her right to be accommodated. In addition this failure caused a rupture in the relationship between the grievor and her Union which in turn resulted in the Union not knowing about the Employer’s conduct towards the grievor, and the Union’s inability to advocate on her behalf. The Union maintained that the Employer had a legal obligation to discuss accommodative measures with the Union as the union has been recognized to be the third party who must be involved in the accommodation of disabled employees. . . . 110 Similarly, the Union argues that it should have been notified and brought into the discussion before the grievor was placed in the temporary Whitney position, and before the grievor was offered the permanent IFSS position. Had the Union been made aware of these circumstances it could have intervened on the grievor’s behalf and advocated for her right to be accommodated by giving her enough time to arrange transportation. [59] At para. 153, the Board concluded as follows with respect to the initial placement and accommodation of the grievor: 153 We agree that if the placement was more than a straight recall and an accommodation of the grievor’s disability, it would have been preferable if this had been discussed with the Union before the grievor was placed at Timmins HS. We agree with the Union’s submissions that it has an obligation and a right to be involved in the accommodation of employees in the bargaining unit. Renaud v. Central Okanagan School District No. 23 [1992] 2 S.C.R. 970 (S.C.C.) (“Renaud”) indicates that the Union may incur liability if it causes or contributes to the discrimination of employees. As such the Union has the same right as the Employer to be involved in the accommodation process. Accommodation is a shared duty and obviously, in order for the union to discharge its duty, it must have knowledge of, and be involved with, the Employer in the assessment and implementation of accommodative measures. An Employer which does not involve the Union when it seeks to accommodate a disabled employee does so at its peril. Given that the Union is also liable to accommodate, failure to involve the Union may in and of itself amount to a violation of the employee’s rights under the code or the collective agreement. On balance however, with respect to this 2006-2007 Timmins HS position, we have - 26 - concluded that the Employer did not breach the Code because it failed to hold an accommodation meeting involving the Union. [60] In relation to the grievor’s subsequent placement, however, the Board came to a different conclusion. At para. 192, the Board wrote: We also find that the Employer violated the collective agreement and the Code when it failed to discuss the changed circumstances which gave rise to the IFSS position with the Union, and when it otherwise failed to communicate with the Union about matters pertaining to the accommodation of a disabled bargaining unit employee who was being recalled and who would be required to move to a new location because of that recall. (Emphasis added) [61] In Re City of Toronto, (supra), Arbitrator Knopf was seized with a policy grievance and several individual grievances arising out of the contracting out by the City of half of its garbage collection, and resulting re-deployment and layoff of employees. The collective agreement in Article 29, and Article 49 contained terms relating to “layoff and recall” and “Modified Work Program” respectively. Article 29 included the bumping process. [62] The grievor was scheduled to meet with the employer “to make a selection to bump”. His request for union representation was denied on the grounds that the bumping process was not “joint with the union”. [63] The union’s position is set out at paragraphs 44-45: 44 The essence of the Union’s case is that the Employer’s failure and/or refusal to involve the Union in the bumping process for disabled employees resulted in violations of the Collective Agreement and the Human Rights Code. Recognizing that nothing in Article 29 specifically mandates the Union’s involvement, it was said that when a disabled employee requests and/or needs accommodation, the Employer must involve the Union in searching for meaningful work that the employee is able to perform. The Union asserts that the Employer’s unilateral approach resulted in a failure to meet its duty to accommodate. The Union described the Employer’s approach to the Grievor’s situation as a “peripheral, uninformed, hasty and superficial consideration of the Grievor and his disabilities.” The Union acknowledged that the evidence presented does not establish whether the Grievor could perform any meaningful work. However, it was asserted that the Grievor was entitled to have the Employer embark upon a tri-partite accommodation process with the Union and the Grievor that would fully explore the alternatives that might have been or could be made available for him. Further, while the - 27 - Union acknowledged that the Employer may have been able to accommodate other disabled employees in this bargaining unit, this was said to be irrelevant to the fact that the accommodation process was not fully undertaken for the situation of the Grievor. 45 Further, it was said that there is both a procedural and a substantive duty to accommodate which can and must be judged separately, even resulting in conflicting determinations, yet each triggering an entitlement to damages. The Union pointed out that if there is a need to modify a provision in the Collective Agreement to accommodate an employee, neither the Employer nor the Union can stand in the way of an accommodation unless that would result in undue hardship for the Employer or other employees. This was said to support the argument that Article 29 should not be administered as a unilateral process when it applies to a disabled employee. [64] By way of remedy, in addition to seeking a declaration that the employer violated Article 29 and the Human Rights Code, the union sought a direction that “the employer engage the union in discussions to determine if the grievor can be accommodated, in or outside of this bargaining unit”. [65] The essence employer’s position is set out as follows as para. 53: … the Employer asserted that neither the Collective Agreement nor the Code require this Employer to apply Article 46 to the administration of the Article 29 process or engage the Union in the administration of that provision. Further, the Employer strenuously denied any failure to accord with the Code and/or Article 29 and stressed that it did give proper procedural and substantive consideration of the Grievor’s disabilities. The Employer stressed that unless the Union can establish that there was a substantive failure to accommodate the Grievor, the grievances should fail. [66] The union’s reply submissions included the following at para. 67: 67 The Union also clarified that it is not claiming that the Employer is “required to apply Article 46 to Article 29.” Instead, the Union submitted that the Collective Agreement requires the parties to recognize their shared obligations as articulated in Article 46 when dealing with disabled workers, even when they are facing a layoff. It was said that if Article 46 is a “model” of how accommodation should be handled, the Employer’s process under Article 29 was “the opposite.” It was stressed that although the Employer did allow the Union to attend information bumping sessions and did receive submissions on behalf of some disabled workers, the Employer has always maintained that the Union has no right to participate in the Article 29 process and the Employer had no - 28 - obligation to engage the Union in discussions about disabled workers facing layoff. The Union clarified that it was not seeking a declaration that it is entitled to participate in the Article 29 process in general. It was seeking only to enforce what was said to be its right and obligation to assist a disabled worker in the goal of remaining employed by seeking accommodation with respect to his/her bumping and recall opportunities. [67] At para. 72, the arbitrator commences her analysis with the following observation: 72 This is a case about the intersection between the parties’ duty to accommodate a disabled worker and the rights that arise in the situations of layoff and recall. The duty to accommodate is easy to state, but much more difficult to apply. As the Employer properly submitted, the determination of that duty depends upon the individual circumstances and the particular context of each case. The scope of the duty to accommodate will vary, depending on the characteristics of each workplace, the specific needs of each employee and the specific circumstances in which the decision has to be made. [68] At paragraphs 106-111, arbitrator Knopf, in allowing the policy grievance concluded as follows: 106. As set out above, since Renaud, supra, it has been clear that accommodation is a tri-partite process, imposing responsibilities upon employers, unions and the affected employees, [see too ADM Milling Co, supra, at para. 70]. The extent of the tri-partite inquiry is dependent on the facts of each case. In the best of situations, the inquiry is short, simple and straightforward. If an employee identifies and has a need for an accommodation and the employer grants it, the duty is fulfilled. On the other hand, the inquiry may be much more demanding and complex where there is a dispute about the disability, its extent and duration, the employee’s skills, capacities and potential contributions, as well as the possibility of modifications, and their cost or implications on co-workers, operations or the public. These are just a few examples that can cause concern. The resolution of these issues may involve and require the contributions of many different parties over a long period. In every case, the process must start with the employer and the individual, but it may also command the participation of the union as well in order to fully explore all the potential options. 107. Of course there is no need to involve a union if an employer is able to arrange an appropriate accommodation for a disabled employee. However, when there is any question of finding or maintaining appropriate employment for an employee who becomes disabled due to illness of injury, a union has a critical role to play that cannot be ignored. If a - 29 - suitable position is available that requires the Union’s cooperation, the union is required to not stand in the way of such an accommodation, see Renaud. This could take the form of agreeing to a waiver of a seniority or posting provision, agreeing to place the person outside of the bargaining unit, adjusting the regular hours of work, or motivating the cooperation of co-workers. Further, the case law points out that because the union has the exclusive right to represent employees and shares in the duty to accommodate, those responsibilities cannot be thwarted by an employer refusing to allow the union to assist a disabled employee in any aspect of his/her employment. As Arbitrator Shime said, denying the union the right to deal with an individual employee without the presence of the union with regard to a search for modified work is tantamount to individual bargaining with the bargaining unit member and denies the employee the substantive right of representation, a matter that is of very significant consequence to that employee, see Commercial Bakeries, supra at p. 401. (Emphasis added) 108. While it is clear that there is no contractual obligation to treat the Article 29 process as a joint process, the union cannot be excluded from assisting disabled employees involved in that process. The arbitral and Supreme Court’s case law makes it clear that unions share in the responsibility of accommodating disabled employees. That shared responsibility cannot be fulfilled without a union being allowed access to the accommodation process and the disabled employee. It therefore follows that an employer cannot claim that it has fulfilled its statutory or contractual duty with regard to a disabled employee when it has excluded a union from the accommodation inquiry and prevented an employee from having access to the union’s assistance. 109. The evidence in this case is that the Employer has consistently taken the position that the Union has no role to play in the administration or application of Article 29, even when a disabled employee is going through that process. While the Employer invited the Union to attend three Article 29 “information meetings”, the Employer only allowed one Union representative to attend the individual bumping interviews with the disabled employees. It is also noted that the Employer did accept and respond to two specific calls from the Union made on behalf of two other disabled employees after the bumping meetings took place. However, the uncontradicted evidence is that the Union was told that it had no role to play in the process. Further, when the Grievor asked if he could have a Union representative attend his bumping interview, his request was denied. He was told that it was not “a joint process”. Further, the Employer’s position in this hearing had been to assert that the Union has no role to play in the Article 29 process. Therefore, it must be concluded that with three exceptions, the Employer did not recognize the role of the Union or allow the Union to represent disabled employees who were seeking accommodations and/or modifications in positions under consideration in the Article 29 layoff and recall process. - 30 - 110. At the same time, the Employer recognized and recognizes that the duty to accommodate extends to the layoff and recall process. In fact, Article 29.04(a) specifies that in determining the ability of an employee to perform the work for purposes of that Article, the City cannot “act in a manner that is inconsistent with the terms of the Agreement.” The requirement to act without discrimination includes the duty to accommodate by providing modified work to a disabled employee, unless that would create undue hardship; see Human Rights Code, s. 17(2). Since the accommodation process may require the involvement of the Union, the exclusion of the Union from the consideration of disabled employees’ rights under Article 29 is inconsistent with the Collective Agreement’s requirement to be administered reasonably and without discrimination. 111. One of the Employer witnesses suggested that the Union would not have had anything to offer in the Article 29 process. This is because the Employer’s Disability Management personnel did turn their minds to issues of modification and accommodations. The work of those well- intentioned employees has not been ignored. However, assuming that the Union might not have had anything to offer is not acceptable. That assumption demonstrates the lack of “open-minded” assessment that is critical to the proper examination of an accommodation request; see ADM Milling, supra. Allowing the Union to represent a disabled employee in a bumping or recall process would have allowed the parties to explore a myriad of possibilities, including, but not limited to, the suspension of the application of provisions of the Collective Agreement, modification of vacant positions, determining whether the employee could perform meaningful work if assigned only part(s) of vacant positions, looking at whether other positions could be modified, or whether appropriate accommodation was available outside of the bargaining unit. None of that is easily examined without involving the Union’s input and cooperation. Further, the cross-examination of the City’s witnesses exposed several simple accommodation measures that the City had not even considered, such as replacing heavy crowd control barriers with lighter ones for the Ticket Collector position or restricting the duties of the Transfer Station Operator to ticket taking, as the latter position’s JDA specifically contemplates. Whether those modifications would have been appropriate for the Grievor or achievable without undue hardship cannot be determined on the basis of the evidence presented. The important point is that the failure to allow the Union to engage in the discussion of possible accommodations for disabled employees facing layoff amounted to a violation of the Union’s right to fulfill an important role with regard to the representation of those employees. That denial contravened the statutory and Collective Agreement’s promise that no provisions would be applied or administered in a way that did not comply with the Human Rights Code or the contract’s non-discrimination clause. (Emphasis added) - 31 - [69] In Re National Steelcar Ltd. (supra) at para. 9, Arbitrator McLaren set out the issue in the policy grievance as follows: Is the Union entitled to participate when an injured employee has meetings with Company to discuss modified work or a return to work? This is different than the issue before Arbitrator Shime in Commercial Bakeries Corp, supra, which involved determining if an employee is entitled to Union representation in similar discussions to those posed in the issue here. The issue herein is the collective right of the Union as compared the individual right of an employee who is a member of the Union with the consequent both duty and right upon the Union. They are two different subject matters. If the Union is to have the rights for which it seeks a declaration they must be found either in the Collective Agreement or in the external law which is imposed upon the parties private bargain. [70] He then reviewed the provisions in the collective agreement and concluded that they do not provide the union the entitlement it claims, and at paragraphs 14 to 18 wrote: 14 In the absence of the Union having a substantive right stemming from the Collective Agreement that they negotiated the issue shifts to the application of external law which is imposed upon the parties private bargain. Does external law impose that union representation is required during all meetings with its members and company personnel for “WSIB, sick benefit, early and safe return to work and benefit, pension and insurance purposes”? 15 The external law in Ontario which applies to the duty to accommodate involves the Workplace Safety and Insurance Act, 1997 S.O. 1997, c. 16, Sch. A and the Human Rights Code, R.S.O. 1990, c. H. 19 as amended. The provisions of these statutes permit the workers to be represented by a union but there is no provision in these statutes that recognizes or empowers the union to represent these employees of whom they are the bargaining agent. The worker has the right to request the Union but such a request does not amount to a legal obligation on the union per se for it to be involved in accommodation cases. 16 Turning to the jurisprudence which the Union argues supports its position the commencement point ought to be the Supreme Court of Canada in the Renaud, supra, decision. Justice Sopinka writing for the Court prescribed two situations where the involvement of the Union is mandatory. The first is found at paragraph 32 if the collective agreement on its face discriminates against an employee. The second situation is described at paragraph 40 where the union must assist “To make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found”. Thus, if the Union has to suspend modify or otherwise alter the language of the - 32 - collective agreement in order to facilitate the duty to accommodate then it must so act. Therefore, there is a duty imposed on the parties private bargain by external law in the circumstances described by the SCC. The duty to accommodate is first that of the Company but if the only way to do so is to alter the collective agreement then it is the duty of the Union to cooperate in order to facilitate the duty to accommodate. That is the essence of the decision by Arbitrator McConchie in the Vanderhoof Speciality Wood Products, supra, case wherein at p. 187 it is said that: The employer bears the most significant burden in an accommodation case, . . The union has a concurrent responsibility with the employer to accommodate, which only arises if a union is party to discrimination… The union’s duty only arises when its involvement is required to make accommodation possible and no reasonable alternative resolution has been found. 17 While the case of Commercial Bakeries Corp, supra, by Arbitrator Shime is cited to stand for much more, it does little more than confirm the SCC and the application of that case in the Vanderhoof case. In the Commercial Bakeries Corp, supra, case the employer was going to accommodate an injured employee by permitting a return to work which involved changing the employee’s hours of work and working conditions including wages. In those circumstances Arbitrator Shime held at p. 405 that: In summary the Union’s right to represent employees and the Union’s responsibilities along with that of the employer to ensure the conditions of the Human Rights Code with respect to the duty to accommodate are adhered to, coupled with the Union’s obligations inherent in the Collective Agreement, require the Union to be present at meetings where the employer and the employee are meeting to review the conditions under which an employee will return to work … The union in that case received the requested declaration because it needed to be present to decide that the change in hours of work, wages and other working conditions were satisfactory because of the impact on other employees whom it represents. 18 In the case before me the Union is requesting a general right to be present and not a specific one that is imposed by external law. However, in the absence of a negotiated right I do not find that they have such a general right. They are entitled to be present when the external law imposes an obligation on the Union as it did in the cases discussed in this decision. However, they are not entitled to generally be present during all meetings with its members and the Company personnel for “WSIB, sick benefit, early and safe return to work and benefit, pension and insurance purposes”. (Emphasis added) - 33 - [71] In Re Paul’s Hospital (supra) the employer decided on and offered an accommodation to the grievor and the union, and advised that if the grievor failed to report to work as scheduled, he would be terminated. No meeting was held with the grievor or the union, to discuss the accommodation. The grievance challenged the termination and alleged that the employer had failed to accommodate the grievor. In considering the applicable legal framework, the arbitrator reviewed a number of “legal principles”, including the following at para. 51: 51. Finally, I do not believe the law imposes a general obligation on the Employer to involve the Union in its search for accommodation. The Union should be offered that opportunity if it’s a potential party to the discrimination either because the Union participated in formulating the work rule or practice that discriminates (usually because it is part of the collective agreement) or if the Union’s co-operation with the Employer’s efforts to find a reasonable accommodation is necessary for a solution to be found: see Renaud, supra, at pp. 990-991. However, where neither situation exists, there is no legal principle of which I am aware requiring the Employer to involve the Union. Let me add that as a practical matter it makes sense to involve the Union and the affected employee. But the effect of a failure to do so when it is not legally required must depend upon the particular circumstances of the case at hand. I will return to this point. [72] In Re Hart-Day (supra) the issue was whether the employer had a procedural duty to consult with the employee before deciding on an accommodation. The Board referred to Re Balog, 1998-1972 etc. (Abramsky), where the Board reviewed the decision in St. Paul’s Hospital (supra), and at p. 103 wrote: Upon consideration, it is my view that the Employer’s approach is consistent with the policy guidelines and the Supreme Court of Canada’s decision in Renaud, supra. In Renaud, the Court found that “while the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business”. The employer has the responsibility to “initiate the process” while the employee has “an obligation to accept reasonable accommodation.” The decision seems to indicate that the proposal for accommodation may come from the employer without first directly consulting the employee about various options. - 34 - Likewise, the guidelines require employee participation and state that an employee must “participate in discussions regarding possible accommodation solutions”, but they do not require the employer to hold such discussions. Of course the employer may do so, and perhaps should do so, but the employer may also, based on the medical information provided, determine the appropriate accommodation and then discuss it with the employee without violating the duty to accommodate. [73] Agreeing with the foregoing, in Re Hart-Day, the Board at para 43 wrote: [43] I agree. In the absence of a specific provision to that effect in the legislation or collective agreement, there is no requirement that employers must, in every case, meet with the employee and discuss options before deciding on a reasonable accommodation. As stated in the excerpts above, it is advisable for employers to do so. This is because there may be situations where an accommodation may appear to be within an employee’s restrictions, but, in fact may not be found to be so once information which the employer was not aware of comes to light. That is the risk an employer takes when making decisions without consultation with the employee and/or her treating physicians. This is analogous to a situation where an employer is contemplating disciplining an employee. In the absence of a requirement in the collective agreement, an employer has no duty to meet with the employee before imposition of discipline. Based on information it possesses, an employer may decide that it has just cause for a particular level of discipline and proceed to impose it. However, in doing so, the employer runs the risk that there may be circumstances which it is not aware of, for example a medical affliction the employee was under at the time or provocation by a co-worker, which may make a difference. While the best practice for an employer is to obtain the employee’s side of the story before deciding on discipline, ultimately the issue is whether the employer made the correct decision on just cause. As long as the employer got it right, the fact that it did not meet with the employee by itself cannot lead to a finding that the discipline was not just. [74] The authority which most directly addresses the questions posed to the Board is the decision in Re Telus Communications Inc. v. Telecommunications Workers’ Union, 2015 BCSC 1570 (Supreme Court of B.C.); appeal dismissed 2017 BCCA (Court of Appeal B.C.). There the union had claimed that the employer was not allowed to deal directly with employees about accommodation, and that it must give notice, provide information and consult with the union in all cases. The arbitrator considered a number of arbitration awards, including Re Commercial - 35 - Bakeries Inc. (supra), and National Steelcar (supra) as well as Renaud, and upheld the union’s position. [75] On an application for judicial review, the arbitration award was set aside. At para. 102, the court wrote: [102] It is important to note, as a preface to what follows, that the issue is quite narrow. What Telus claims is the right to address accommodation issues that would not, of necessity, require union involvement, such as those involving an amendment to the collective agreement, directly with the employee, while recognizing the employees’ right at any stage to involve the union himself or herself. [76] Addressing the union’s argument that the employer is prohibited from bargaining with individual employees in a unionized environment, the court at paragraphs 110 to 113 wrote: [110] The question as to whether external law binds Telus to an interpretation implying a right to notice, information and consultation, in spite of terms negotiated in clause A-13 turns, in my view on a consideration of the view Arbitrator Sullivan took of the overriding effect of TWU’s exclusive bargaining status. [111] In this respect I think it must be remembered that there are significant aspects of the employer’s business that do not amount to “bargaining”. The “management rights” spelled out in Article 8.01 and the rights set out in A13.01, generally reserve to Telus rights associated with the operation of its business. Barring conflict over these matters – in which case TWU would be involved – Telus generally has the right to direct employees as it considers advisable. The inclusion of “reasonable accommodation” among the matters within the purview of management is not manifestly inappropriate or contrary to TWU’s right to act as the sole collective bargaining agency … “in any negotiable matters pertaining to [the collective agreement].” To “bargain” or “negotiate” in ordinary parlance, is to proceed from difference to compromise. It is not at all clear that the simple arrangement of an accommodation between employer and employee can inevitably be characterized in such terms. Arbitrator Sullivan’s reconciliation of the cases turns on a reading of National Steel Car Ltd. and cases like it that concludes that references to the collective agreements and to general law (see for example the passage from National Steel Car Ltd., herein at para. 44) amount to examples of arbitrators overlooking the Canada Labour Code and the exclusive bargaining agency included in the relevant collective agreements. [112] This seems unlikely. I think that read deferentially, that is, as decisions of adjudicators with particular expertise, the case law rather firmly supports - 36 - Telus’ view that “reasonable accommodation” does not fall within the “negotiating” or “bargaining” mandate of the TWU except in the circumstances outlined in the case law. The exceptions are well established: where there has been union participation in a discriminatory policy or rule; where the union’s agreement is necessary to facilitate the accommodation, and no alternative can be found; or where an employee requests the involvement of the union. (Emphasis added) [113] On that last point, Arbitrator Sullivan made the observation that employees dealing directly in an accommodation situation might not be aware that they have recourse to TWU. While that is theoretically possible, it does not strike me as a stand-alone basis for a ruling that in all cases TWU must be notified, but rather as a matter relating to the communication between TWU and its members. [77] At para 115 the Court wrote: [115] Having grounded his findings in the discrimination provisions of the collective agreement and the exclusive bargaining agency provisions of the Canada Labour Code, Arbitrator Sullivan essentially found that the external law imposed the right to notice, information and consideration on any language the parties might bargain in the future. It seems to me that, if the ruling is correct, Telus’ interpretation of Article 13.01 could not be restored, because of the finding that the Canada Labour Code imposed an external restraint on such an outcome. Arbitrator Sullivan read into the case law a notion that all accommodation discussions are a species of bargaining or negotiations within the meaning of those terms in the Canada Labour Code. In my view, this is at odds with the pertinent case law which has defined the range of circumstances in which accommodation necessitates union involvement, and which supports the notion that, outside of those circumstances, the engagement of TWU in accommodation cases is a matter to be negotiated between Telus and TWU. Indeed it was negotiated, in Telus’ favour, in the round of bargaining leading to the current collective agreement. (Emphasis added) [78] At para. 117 the Court stated: [117] I am also of the view that the case law does not support the extension of the concept of “negotiation” or “bargaining” to include all aspects of accommodation and that the implication that the cases that say otherwise simply overlooked the fundamental principle of exclusive bargaining agency is unreasonable and unfounded. [79] The British Columbia Court of Appeal, in a unanimous decision, dismissed an appeal by the union. Saunders J observed that the lower court had found the - 37 - arbitrator’s decision to be unreasonable for three reasons, “any one of which, if correct, was sufficient to fatally undermine the arbitration decision”. (para. 6). For the instant purposes, the second reason, namely that “the certificate of bargaining authority did not give the union the exclusive rights it claimed,” is the important one. In fact, the Court of Appeal focussed on that very issue. Thus at para. 9, Saunders J. stated that “… the appeal, in my view, should be resolved on the second reason given by the judge (and the second ground of appeal) the arbitrator’s understanding of the effect of the certificate of bargaining authority”. The Court went on to conclude as follows: In my opinion, the view expressed in the arbitration decision of that legal right, as being founded on the Canada Labour Code and the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and incorporated into the collective agreement, cannot stand. It is, in my view, clearly wrong, outside the general understanding of union rights (as reflected in a significant body of arbitral jurisprudence), and unreasonable. For a court to decline to interfere in the arbitration decision is to create considerable potential for mischief in matters of collective bargaining, and to potentially expand the range of potential union liability for actions not hitherto required to be taken. [80] At para. 5, the Court described the issue before it: [5] I have emphasized the comprehensive nature of the alleged right because it is undisputed by Telus that an accommodation requiring an adjustment to a negotiated term, and cases in which the employee asks for Union representation, are cases in which the Union is entitled to participation in the accommodation process. The case thus affects those requests that are not ones requiring an adjustment to the collective agreement and cases in which the employee has not expressed a wish for Union representation. [81] At paragraphs 17 to 32, the Court reasoned and concluded as follows: [17] The Union presents the issue before us – is the judge’s conclusion correct that the arbitration decision is unreasonable? – as one involving both its rights as bargaining agent and its duty to the employees who are members of the bargaining unit. It refers to the well-known proposition that an employer is not entitled to bargain with an employee over terms and conditions of work once a union is certified: McGavin Toastmaster Ltd. v. Ainscough, 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718; Noël v. Société d’énergie de la Baie James, 2001 SCC 39 (CanLII). Referring to Noël, the Union explains that Telus, as the employer, has lost the right - 38 - “of negotiating different conditions of employment with individual employees”, and says that by communicating directly with an employee without Union inclusion, Telus is treading on forbidden ground. [18] In support of its contention that it is entitled to the rights of notice, information and consultation it advances, the Union relies upon the arbitration decision of Mr. Shime in Commercial Bakeries Corp. v. CAW- Canada, Local 462, (2000) 121 L.A.C. (4th) 398, and distinguishes all other cases declining to find such a right as cases that did not advert to the principle of exclusivity of bargaining authority set out in the Canada Labour Code. [19] In Commercial Bakeries Mr. Shime found that the union, as the exclusive bargaining agent, had the right to represent its disabled members where they required accommodation on their return to work. Although Commercial Bakeries goes some distance towards the Union’s proposition, I do not read it as, in the end, standing for the proposition advanced to us. Commercial Bakeries concerned circumstances at the more serious end of accommodation – return to work of injured employees who may require modified work programs and who may find their wages, benefits and pension rights affected. Its context was a collective agreement providing that wage provisions of the agreement may not apply in accommodation cases. These circumstances are at the more substantial end of the accommodation spectrum, and Mr. Shime, in holding that the union had the participatory right claimed based on its exclusive bargaining authority, carefully kept the ambit of his award to the case before him: 18 … In the ordinary course of dealing between a company and its employees, to have a union steward present every time the company had a meeting with an employee, which would not result in adverse circumstance for the employee(s), would be totally impractical. The rejection of that general proposal does not deny the Union’s right, considering the legal obligations inherent both in its position as the bargaining unit representative and also its obligations concerning accommodation, to be present when return to work issues are discussed by an individual employee with the Company. [20] In Toronto (City) v. Toronto City Employees Union, Local 416, (2015) 124 C.L.A.S. 283, the arbitrator addressed union participation when sought by an employee, referred to Commercial Bakeries as a case concerning employee rights to union representation, and said: Employer counsel is correct in stating that no cases require an employer to involve a union in all accommodation considerations. Nor does this Union claim such a right. If an employer is able to successfully accommodate an employee - 39 - without involving a union, there is no cause for concern. However, where no accommodation is being offered or the accommodation being offered by the employer is not accepted, the employer cannot ignore the union. [21] National Steelcar Ltd. v. United Steelworkers of America, Local 7135, (2005) 136 L.A.C. (4th) 238, described Commercial Bakeries as a case in which “[the union] needed to be present to decide that the change in hours of work, wages and other working conditions were satisfactory because of the impact on other employees whom it represents.” [22] The arbitration decision before us distinguished comments that disavow the right of a union to be present in all cases of accommodation, for example those of Ms. Jackson in St. Paul’s Hospital v. Hospital Employees Union, (2001) 96 L.A.C. (4th) 129; Mr. McConchie in Vanderhoof Speciality Wood Products v. IWA.-Canada, Local 1-424, (2004) 129 L.A.C. (4th) 181; and Mr. McLaren in National Steel Car Ltd., on the basis the arbitrators did not consider the effect of the certificate of bargaining authority on a union’s rights and obligations. [23] The alternate and correct view, I consider, is that the theory now advanced is simply unsound in principle. [24] The arbitration decision in the passages replicated earlier refers to the accommodation process as “grounded in Article 4 of the Collective Agreement” and as “grounded in the discrimination provision of the Collective Agreement”. Article 4 – Discrimination, prohibits discrimination as provided by the Canadian Human Rights Act. It is, perhaps, self evident that many of the requests for accommodation will not be made in discriminatory circumstances. Indeed, those requests that are satisfied, of the sort Telus says do not require Union engagement, will avoid the potential of discrimination – they are the means by which the employer may avoid breaching the Canadian Human Rights Act and Article 4. I see no reason to say Article 4 compels Union engagement and no basis to posit Union liability absent a discriminatory practice or circumstance. [25] Accommodation is a concept developed under human rights legislation. Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 is the leading authority on legal responsibility (liability) for discrimination in the context of a unionized work place. In Renaud, Justice Sopinka, for the court, explained that the primary obligation to avoid and cure discrimination lies with the employer, although the union also bears potential responsibility in limited circumstances where it has participated in the discrimination either by contributing to it or by not assisting to make accommodation possible. At pages 989-991 he said concerning the union’s obligations: - 40 - … Accordingly, a union which causes or contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute liability, a union must have the same right as an employer to justify the discrimination. In order to do so it must discharge its duty to accommodate. … First, it may cause or contribute to the discrimination in the first instance by participating in the formulation of the work rule that has the discriminatory effect on the complainant. This will generally be the case if the rule is a provision in the collective agreement. … Second, a union may be liable for failure to accommodate … of an employee notwithstanding that it did not participate in the formulation or application of a discriminatory rule or practice. … If reasonable accommodation is only possible with the union’s co-operation and the union blocks the employer’s efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination. In these circumstances, the union, while not initially a party to the discriminatory conduct and having no initial duty to accommodate, incurs a duty not to contribute to the continuation of discrimination. It cannot behave as if it were a bystander asserting that the employee’s plight is strictly a matter for the employer to solve. [Emphasis added.] [26] And at 993: In the second type of situation in which the union is not initially a contributing cause of the discrimination but by failing to co-operate impedes a reasonable accommodation, the employer must canvass other methods of accommodation before the union can be expected to assist in finding or implementing a solution. The union’s duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found. [Emphasis added.] [27] The arbitral jurisprudence referred to by the arbitrator and the judge confirm the obligation of a union to engage in the accommodation process when its participation is required to alleviate the application of a term of the collective agreement. Those cases are consistent with Renaud, but they do not extend this responsibility, and commensurate liability, to all cases. To accept the Union’s view of its duty is to expand Union responsibility and potential liability far beyond that spoken of in Renaud. - 41 - [28] I conclude that the non-discrimination provision of the collective agreement, adopting the Canadian Human Rights Code obligations, does not provide a basis for Union participation in all employee requests for accommodation, and the submission advanced by the Union wrongly anticipates a circumstance of discrimination where none may ever exist. [29] The Union has also referred to its duty of fair representation. Certainly in respect to a dispute, or an adjustment to negotiated provisions of the collective agreement, the Union has exposure to liability if it fails to act. This appeal, however, is not about those cases. Many circumstances of employment do not rise, in the context of collective bargaining, to the legal importance of terms and conditions. Rules, policies, accoutrements of work and environmental conditions come to mind. While such topics may be raised in bargaining and may be reflected, formally, as a term or condition of employment through a negotiated provision or understanding, or perhaps even by past practice, absent such agreement, they are not generally matters that are prohibited topics of communication between the employer and employee in the sense discussed in Noël. I do not consider the theory that discussing a request for accommodation of the sort that is at issue in this appeal is inconsistent with the Union recognition clause. Nor, in my view, would such an interpretation of the Union’s duty of fair representation be reasonable. [30] It is helpful to refer to arbitration cases, even recognizing that there is no principle of binding authority in arbitration law. It seems to me that the statements of the three arbitrators, Mr. McLaren in National Steel Car, Ms. Jackson in St. Paul’s Hospital, and Mr. McConchie in Vanderhoof Specialty Wood Products, persuasively describe the correct approach to a Union’s inherent right to participation: Mr. McLaren in National Steelcar: 18 In the case before me the Union is requesting a general right to be present and not a specific one that is imposed by external law. However, in the absence of a negotiated right I do not find that they have such a general right. They are entitled to be present when the external law imposes an obligation on the Union as it did in the cases discussed in this decision. However, they are not entitled to generally be present during all meetings with its members and the Company personnel for “WSIB, sick benefit, early and safe return to work and benefit, pension and insurance purposes”. Therefore, the grievance can only be allowed in part although no specific breach of the award of 9 November 2004 is found. Therefore, a limited declaration is appropriate in the following terms. Ms. Jackson in St. Paul’s Hospital: - 42 - 51 Finally, I do not believe the law imposes a general obligation on the Employer to involve the Union in its search for accommodation. The Union should be offered that opportunity if it is a potential party to the discrimination either because the Union participated in formulating the work rule or practice that discriminates (usually because it is part of the collective agreement) or if the Union’s co-operation with the Employer’s efforts to find a reasonable accommodation is necessary for a solution to be found: see Renaud, supra, at pp. 990-991. However, where neither situation exists, there is no legal principle of which I am aware requiring the Employer to involve the Union. … Mr. McConchie in Vanderhoof Specialty Wood Products: 25 The union has a concurrent responsibility with the employer to accommodate, which only arises if a union is party to discrimination. It may become a party in two ways: (1) by the negotiation of work rules in the collective agreement; or (2) by impeding employer efforts to accommodate. In day to day operations, the union’s duty only arises when its involvement is required to make accommodation possible and no reasonable alternative resolution has been found. [31] I conclude, as did the judicial review judge, that the pillar of reasoning supporting the entire arbitration decision – that the collective bargaining authority of the Union compels its engagement in all requests for accommodation for medical disabilities – is in error and is unreasonable. [32] In my view, the judge was correct to quash the arbitration decision. I would dismiss the appeal. (Emphasis added) Conclusion [82] In the instant proceeding the union presented the awards in Re Commercial Bakeries Inc. (Shime) and Re City of Toronto, (Knopf) as standing for the proposition that the union’s status as exclusive bargaining agent, and the prohibition of bargaining with individual employees, entitle it to participate in every accommodation and return to work process from “beginning to end”. The Board disagrees. The Board agrees with the arbitral and judicial authorities reviewed, those decisions did not depart from, and are not inconsistent with, the judgement of the Supreme Court of Canada in Renaud, which states that a union’s rights and responsibilities in relation to the accommodation and return to work of an employee only arise in limited circumstances. As the B.C. Court of - 43 - Appeal in Re Telus Communications Inc. concluded at paragraphs 25-26, (reproduced in this decision at paragraph 81) based on the arbitral and judicial authorities, including the Supreme Court of Canada judgement in Renaud, a union is entitled to participate in the accommodation and return to work process only in limited circumstances. The union’s status as exclusive bargaining agent does not by itself confer upon it participatory rights in every case. [83] As reviewed earlier in this decision, one of the situations when the union is accorded participatory rights is where some collective agreement rights of the employee or other employees may be affected. In this regard, where modification of work or working conditions are involved, that may require the involvement of the union. This was held to the case in Re Commercial Bakeries (supra) (the wage provisions of the collective agreement may not apply to the employee) and Re District School Board Ontario North East (the employee was required to change work location). In Re City of Toronto (supra) at paragraph 111, the arbitrator sets out a number of situations as examples of where the union has the right to participate. She upheld the union’s claim because the bumping provision in the collective agreement stood in the way of finding an accommodation for the grievor. [84] There is no question that it is open for the parties to a collective agreement to negotiate terms entitling the union to more information and more participatory rights in relation to accommodation and return to work of employees. If this is done, the employer thereby has agreed to abridge its management rights, and is bound by its agreement. In the instant collective agreement the only provision the union relied upon is Article 30(e). That provision must be examined to ascertain what rights it confers on the union. [85] It is useful to set out Article 30(e) again. It reads: Where a supervisor or other employer representative intends to meet with an employee: . . . - 44 - (e) for matters related to the development, implementation and administration of an accommodation or return to work plan; . . . The employee shall have the right to be accompanied by and represented by a Union representative. The Employer shall notify the employee of this right and advise the employee and the Union of the time and place for the meeting. If no union representative is reasonably available to meet at the time established, the Employer may set a meeting within the next twenty- four (24) hours taking into consideration, to the extent possible, the union’s availability. [86] The union’s primary position is that it has the right to be notified of every such meeting, and further that it has the right to attend such meetings and represent the employee, whether or not the employee had requested union representation. The Board concludes that Article 30(e) does not confer such broad rights. Such an interpretation would render meaningless the explicit language to the effect that “the employee has the right to be accompanied by and represented by a union representative”, and the obligation imposed on the employer to notify the employee of that right. The provision clearly gives the employee a choice to have union representation at any meetings coming within sub-section(e). It does not confer on the union an independent right of representation. [87] The union’s alternate position is that, even if it has no right to attend and represent an employee who has waived the right to union presentation, it has the right to be informed of the time and place of every such meeting, so that it will not be kept in the dark about what is “going on” with the accommodation/return to work of its members. However, what matters in interpreting a provision of a collective agreement is what the parties have agreed upon, and not what is more appropriate, fairer or what makes more sense in the opinion of a party or the arbitrator. Reading the provision as a whole, the Board does not agree with the union’s alternate position either. The article could certainly have been clearer. As union counsel pointed out, it does not say that “if the employee elects to be represented”, the union shall be notified etc. However, despite that imperfect language, the article read as a whole cannot reasonably be interpreted as - 45 - requiring that the union be notified of the time and place of every meeting, regardless of the employee’s wishes. [88] The article goes on to require that the meeting be re-scheduled if “no union representative is available to meet at the time established”, and further that in re- scheduling the meeting “the union’s availability” be taken into account to the extent possible. This clearly indicates that the notification of the time and place of meeting is required for the purpose of facilitating the attendance of a union representative at the meeting, and not for mere informative purposes as the union suggests. As the Board has concluded, attendance at the meeting by a union representative is authorized by Article 30(e) only if the employee in question elects to be represented by the union. [89] In addressing the language in Article 30(e) the issue arose as to whether an employee’s election on union representation is a one-time election that applies to all meetings that come within the article, or whether the employer’s obligation to notify the employee of the right to union representation and the employee’s election to exercise or waive that right, has to be made with respect to each such meeting. In the Board’s view, the language indicates that the parties intended that the employer’s obligation is to notify the employee of the right to union representation and the employee’s election is to be made prior to a meeting with the employee it convenes following a request for accommodation. If at that time, the employee opts for union representation, the employer is obligated to involve the union in all subsequent meetings with the employee relating to his/her accommodation, unless of course the employee revokes his/her request for union representation. [90] The Board finds the reasoning in the Supreme Court and Court of Appeal judgements in Telus Communications Inc., persuasive as to the extent of a union’s rights and responsibilities in the accommodation/return to work process as set out in Renaud. The Board further concludes that the awards in Re Commercial Bakeries and Re City of Toronto, are not inconsistent with Renaud. They turned on their own facts, and do not support the extremely broad rights the - 46 - union claims here. While the union has a very important role to play in the processes in certain circumstances, it is not an equal partner with the employer, with “a right to participate in all aspects of accommodation/return to work from beginning to end” as it claims. [91] Based on all of the foregoing the Board addresses the questions posed to it. The answers flow from the analysis set out above and should be read together with and in light of that analysis. Question 1 Does the Union’s right to participate in the accommodation and return-to- work process include the right to be involved in developing the Process/protocol in which the workplace parties share employment accommodation, return-to-work and health reassignment information? The answer clearly is “no”. There is nothing in the external law or the collective agreement that restricts management’s right to develop the process and protocol in question. If the employer develops and implements processes and protocols which are not consistent with its legal and/or collective agreement obligations, it would be exposed to liability. [92] Question 2: Does the Union’s right to participate in the accommodation and return-to- work process include the right to review and monitor requests for health information to employees’ treating health professionals? An employee’s health information and the interaction between an employee and his/her treating medical professionals are by its very nature private and confidential. The union would be entitled to access the information it seeks, only where the employee has opted for union representation pursuant to Article 30(e). [93] Question 3 Does the Union’s right to participate in the accommodation and return-to- work process include the right to participate in developing and approving employment accommodation and return-to-work plans? - 47 - The union would be entitled to, and in fact is obligated to, participate in developing of employment accommodation and return to work plans, but only where it involves a discriminatory provision in the collective to which it is party, or where the proposed plan may impact on a collective agreement right of the employee in question or some other employee or employees. In these situations the employer as well as the union have legal duties and responsibilities. Therefore the union is also entitled to participate. In other cases, the union may participate only where the employee has opted for union representation. [94] Question 4 Does the Union’s right to participate in the accommodation and return-to- work process include the right to participate in the search for accommodation solutions generally, including accommodations in the employee’s home position, return-to-work, health reassignment placements, and to determine conversion from temporary to permanent accommodation or the end of the accommodation/health reassignment process? For the same reasons set out in relation to question 3, the union has a right to be involved in the search for accommodation solutions, where the search involves a discriminatory collective agreement provision or impacts on a collective agreement right of the employee in question or some other employee or employees, or the employee had opted for union representation pursuant to Article 30(e). In addition, where the employer had not been able to find an accommodation, it has the obligation to involve the union before concluding that no accommodation is possible and shutting down the search process. This is required to enable the union to fulfill its legal obligation by considering whether a reasonable accommodation short of undue hardship to itself, other employees and the employer may be devised by altering or waiving a provision of the collective agreement. Where that is possible, the union has the obligation to proactively pursue that possibility. [95] Question 5 Does the Union’s right to participate in the accommodation and return-to- work process include the right to participate in developing a protocol for - 48 - assessing minimal qualifications or comparing limitations/restrictions to job demands? The answer to the question generally is in the negative. However, where the employer has concluded that no reasonable accommodation short of undue hardship is available, and the union is consulted as set out in the answer to question 4 above, the union would be entitled to propose waiving or altering any collective agreements right, including any that may impact upon assessing minimal qualifications or comparing limitations/restrictions to job demands. [96] Question 6 Does the Union’s right to participate in the accommodation and return-to- work process include the right to participate in the development of employee accommodation/return to work policies, programs, etc.? The answer is clearly “no”, for the same reasons set out in the answer to question 1. [97] Question 7 Can the Union be precluded from discussions and/or correspondence between members and the Employer as the result of a Waiver of Representation form, or should Union participation and representation be mandatory for all meetings and correspondence. Once again, in the absence of an election by the employee for union representation, the union’s entitlement is limited to situations where a provision in the collective agreement is standing in the way of a reasonable accommodation. The union has no general right to participate any time an accommodation is proposed. [98] Question 8 Does the Union have the right to participate at any time an accommodation is proposed? The answer to this question is the same as the answer to question 7 above. - 49 - [99] Question 9 Do the Employer’s duties under the accommodation and return-to-work process include a duty to be proactive and keep the bargaining agent informed of its accommodation efforts? Is the Employer required to communicate with the Union and provide detailed updates of its accommodation efforts? The employer’s obligation arises only where the union’s involvement becomes necessary due to some provision in the collective agreement coming into play during the employer’s efforts to accommodate. However, where the employee has opted for union representation the participatory rights of the union that flow from that will oblige the employer to involve the union, which would include communicating with and informing the union of developments. [100] The Board has answered the questions put to it based on the law as set out in Renaud and the arbitral jurisprudence. In his submissions on almost every question, union counsel emphasized that union involvement in all aspects of the accommodation/return to work process from beginning to end makes sound labour relations sense. He argued that the participatory rights claimed are “critical”, “important” etc. to the union. He particularly submitted that such union involvement would avoid disputes, and lengthy and costly litigation that follow. While that submission has merit, it does not assist the Board, because its mandate or authority is not to determine what makes good labour relations policy. The Board always encourages the parties to do anything that would facilitate avoidance of disputes and litigation with regard to accommodation of employees, or for that matter, any other issue. This includes consultation with each other in administering and implementing all provisions in the collective agreement, even when there is no legal obligation to do so. However, as discussed earlier in this decision, in determining legal and the collective agreement rights and obligations, what is relevant is not what the Board thinks should be done, or what makes more sense, but what the law or agreement requires to be done. - 50 - [101] Having answered the questions put to it, as requested by the parties, the Board remains seized with the policy grievance. Dated at Toronto, Ontario this 20th day of April 2017. Nimal Dissanayake, Vice-Chair