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Duty to Accommodate

Wednesday, October 4, 2017
To: All MoveUP Members at FortisBC Inc., FortisBC Energy Inc. & FortisBC-CSC

In each of our respective collective agreements with FortisBC, the Parties have negotiated general language with respect to employment discrimination that obligates the Company and the Union from discriminating against employees on the basis of prohibited grounds:

FortisBC Energy Inc.-MoveUP C/A:

1.08  Neither the Union nor the Company, in carrying out their obligation under this Agreement, shall discriminate in matters of hiring, training, promotion, transfer, layoff, discharge or otherwise because of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, age, sex, sexual orientation, or any other grounds under the BC Human Rights Code.

FortisBC Inc. – MoveUP C/A:

8.01  The Company, in carrying out their obligation under this Agreement, shall not discriminate in matters of hiring, training, promotion, transfer, layoff, discharge or otherwise because of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity, or age of that person or because that person has been convicted of a criminal or summary conviction that is n related to the employment or intended employment of that person or any other grounds under the BC Human Rights Act.

FortisBC – CSC –MoveUP C/A:

1.08  Neither the Union nor the Company, in carrying out their obligation under this Agreement, shall discriminate in matters of hiring, training, promotion, transfer, layoff, discharge or otherwise because of race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, age, sex, sexual orientation, or any other grounds under the BC Human Rights Code.

When an employee believes that a barrier, a policy or practice exists that could have an adverse impact on them on the basis of a prohibited ground, then that employee has the right to seek an accommodation.  Once an employee has formally requested to be accommodated, the Employer is obligated to consider the request and make a determination if they can reasonably accommodate that employee’s difference to the point of undue hardship.   It is important to understand that the accommodation is not expected to be perfect, but somewhat reasonable.

Without expressively written language (such is the case in the above noted provisions), the employee must specifically request to have their union representative present during the entire accommodation process.  This is inclusive of telephone calls and meetings.  Employees are entitled to union representation once putting the Employer on notice of seeking an accommodation and that they want their union representative involved.  We see this in light of the recent BC Supreme Court Decision Telus Communications Inc. v. Telecommunications Workers’ Union, 2015 BCSC 1570, rendered by Judge Mark McEwan, who provides the following summation in his decision with respect to unions having a right and obligation to participate in the accommodation process in three circumstances:

a)    where the union has participated in creating a discriminatory policy or rule,

b)   where the union’s agreement is necessary to facilitate accommodation and no alternative can be found, and

c)    where an employee requests union involvement

Please note that the accommodation process also includes Gradual Return to Work (GRTW) programs, and so if you are returning from short term disability, long term disability or needing to have modified duties, this falls under the prohibited ground of disability, and it would avail you the right to seek an accommodation and to have union representation present once you notified the Employer. We would urge you to make any request to the Company in writing.

We impress upon you to understand your rights and if you have any questions please contact a job steward or the union office.

 

In Solidarity,

Cindy A. Lee
Union Representative

 

Reply-to email: 
ksmith@moveuptogether.ca
ks/usw2009
17-FBCE & FBC-CSC-Art 1.08, FBC 8.01
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