Collective Agreements and the Human Rights Code (Collective Bargaining)

Quick quiz –  how long is  your collective agreement? 25  pages? 60? Whatever your answer, it is an underestimate, because there is the part of the collective agreement you can see or read, and the part that you cannot. If  you are a member with a disability, this “hidden” section is a big part of what protects you against discrimination and harassment in the workplace,  and requires your employer  to recognize your right to a workplace accommodation. Your  collective agreement may well  contain provisions that  prohibit discrimination or harassment in the  workplace,  or refer to specific statutes or duties under law. Even if it does not, however,  the relevant employment- related sections of Ontario’s Human  Rights Code are “read into” your collective agreement – meaning they are deemed to be there, even if they are not there explicitly. THE IMPACT OF THE HUMAN RIGHTS CODE The legal aspect of accommodation is the easy part. A member who requires a workplace  accommodation  because  of  a disability has recourse, and the process is straightforward.

• Your employer must recognize the duty to accommodate a staff member with a disability and the duty to  ensure a discrimination  and harassment-free workplace.
• An employment-related complaint of discrimination or harassment can be taken through the grievance  procedure under your collective agreement.
• The arbitrator  who will eventually hear that grievance, should it get that far, is empowered to apply the  Human Rights Code in arriving at a decision. This power is part of Ontario’s Labour Relations  Act.

CLAIMING YOUR RIGHTS One of  the  enduring challenges for  ETFO as  a union is how to convince members  with disabilities to come forward in the first  place and claim their right to accommodation  and freedom  from harassment  and discrimination. There are many reasons  for this.  Some members  are still unaware that they have these legal rights – and they are rights, not a “gift” granted by the employer. Members with disabilities also fear workplace stigma. This is  especially the  case when a  disability is connected  with  mental, as opposed  to physical, health.  Members may worry that  any changes made  in the workplace to accommodate them will  be seen as special treatment, even by their colleagues. Finally, in a workplace culture which fosters a climate of just getting on with things no matter what the  personal costs,  educators tend to  be their own worst enemies. An educator might fully support accommodating the needs of a child with a  disability, and fight  very hard to  help ensure those needs are met, but be reluctant to  come forward  when the disability is  her/his own. EMPLOYERS HAVE A DUTY TO ACCOMMODATE  Employers must  accommodate   employees with disabilities up to the point of  “undue hardship.” Hypothetical examples of undue hardship would be an accommodation  measure so costly it drove the employer to the  brink of bankruptcy,  or that jeopardized the health or safety of others in the workplace, or that had the effect of radically changing the way the employer’s business  was conducted. In   practice,  undue  hardship  is  a  difficult case for  employers to  prove. The average cost of  job accommodations  is  modest (if  there is  a cost  attached at  all).  Far from causing disruption, accommodating  employees means that they can  continue to  be productive members  of  the workforce. COOPERATION IS REQUIRED Employers,  not individual employees or the union that represents them, are responsible  for designing specific workplace  accommodation measures.  Still, an employee  requesting an accommodation  must assist –  for example, by providing the medical  documentation that may be required. The affected employee does not  have the right  to dictate what the precise accommodation  measure  might look like. The  employer’s obligation is to provide an accommodation  that meets an employee’s  needs, but not necessarily her or his preferences. An appropriate accommodation is one that results in equal opportunity  and respects the individual’s dignity. There may be more than one workplace solution that meets this test. Accommodations do not need to be perfect, but they do need to be reasonable. The union, for its part, must cooperate as well. ETFO has a great deal of expertise at the local and provincial levels in assisting members who require either  a  temporary or  permanent accommodation   measure. In   the  vast majority of cases, the matter is  resolved simply through discussions involving the employee,  employer  representatives,  and union representatives.  It is relatively rare for an accommodation issue to be referred to arbitration  or to come before the Human Rights Tribunal. KEEPING AN EMPLOYEE AT WORK The actual words in  the  Human Rights Code which set  forth the  duty to accommodate  have not changed much in recent years.  On the other hand, the human rights case law –  how those words have been interpreted by arbitrators,  tribunals, and the courts  – continues to evolve. One of the more common misconceptions  about human rights in a unionized environment  is that somehow  collective  agreements  suddenly  become irrelevant  in the face of a human rights complaint. The jurisprudence simply does not bear this out.  Arbitrators agree that the best accommodation  is to keep an employee in her or his job, and modify the job or work environ- ment. This can be done through adaptive software or hardware,  ergonomic adjustments or specialized equipment, or alterations  in  some job  duties. Substituting another activity for yard duty is one example. Sometimes,  a job accommodation entails moving an employee out of an existing position into another.   Seniority rights can  become  a factor. Yet arbitrators  who adjudicate such cases have held that employers  must first seek a staffing arrangement that least disrupts the existing rights, including existing seniority rights, of other employees.  Interfering with the employment rights  of others is a last resort and in some cases can be viewed as undue hardship  on the union. Such cases are rare; good faith and  creativity usually yield results. The Human Rights Code exists to protect employees,  and so does your collective agreement.  These two documents are allies, not enemies.