Termination After Three Years Absence Not Discriminatory

McGill University Health Centre v. Syndicat des employés de l'Hôpital général de Montréal (2007), 59 C.H.R.R. D/259, 2007 SCC 4


The majority of the Supreme Court of Canada ruled that the McGill University Health Centre (Montreal General Hospital) did not discriminate against Alice Brady when it terminated her employment after three years' absence due to disability.

Alice Brady worked for the Montreal General Hospital as a medical secretary, a position she held since 1985. In 2000, she had a nervous breakdown and she was off work almost continuously until 2002. She attempted to return to work on a part-time basis at one point, but the Hospital sent her home because she was disorganized and behaved inappropriately. She was scheduled for a return to full-time work in September 2002, but she was in a car accident in July 2002, which made her unable to work for an indefinite period. The Hospital decided to terminate Ms. Brady's employment as of April 3, 2003, when she was still unable to return to work.

The collective agreement between the Hospital and the Syndicat des employés de l'Hôpital général de Montréal (the "Union") permitted termination of an employee after thirty-six months of absence due to illness or accident. However, the Union grieved Ms. Brady's termination claiming that the employer had failed to take reasonable steps to accommodate her, and that the Hospital cannot rely on the thirty-six-month period for benefits allowed in the collective agreement as a substitute for the duty to accommodate. The Union's position was that the duty to accommodate arises when the defined period expires.

The Hospital argued that a collective agreement might, in advance, establish the scope of the duty to accommodate and provide for a maximum period of time beyond which any absence would constitute an undue hardship.

The arbitrator dismissed the grievance, finding that even after the three-year period allowed for in the collective agreement, Ms. Brady was still unfit for work, and there was no additional duty to accommodate her. This decision was upheld in the Superior Court, but the Court of Appeal overturned the decision, concluding that the arbitrator had not decided the reasonable accommodation issue on an individualized basis.

The majority of the Supreme Court of Canada found that neither the employer nor the Union could impose a period shorter than the one to which a person is entitled under human rights legislation in light of the facts of the particular case. The parties to a collective agreement cannot agree to a level of protection that is lower than that provided in human rights legislation, and the importance of individualized accommodation processes cannot be minimized.

Nonetheless, the defined period in the collective agreement can be taken into account as a factor when assessing whether accommodation is reasonable. It represents a consensus position of parties with different interests who are knowledgeable about a particular workplace. Such a clause is not determinative, but it can serve as evidence of the period beyond which an employer will experience undue hardship. In short, it is not a complete answer, but it can be taken into account.

In this case, the majority found that the arbitrator did not err when he dismissed the grievance. He did not limit himself to applying the clause in the collective agreement but also considered the fact that the employer could not anticipate Ms. Brady being able to return to work in the foreseeable future. The duty to accommodate is neither absolute nor unlimited.

In a concurring judgment, Abella and Bastarache JJ. and McLachlin C.J. provided different reasons. These judges found that the majority assumed wrongly that "automatic termination" clauses are prima facie discriminatory because of their effect on persons with disabilities. Generally, automatic termination clauses represent a trade-off for employees between the prospect of dismissal for absence and the certainty that their employment will continue for a fixed period. There is nothing inherently discriminatory in such a trade-off.

Arbitrators must decide on a case-by-case basis whether the particular agreement negotiated by the parties is prima facie discriminatory. A very short period of leave for disability or illness will raise more questions than a longer one. In this case, the arbitrator decided that a three-year period was not prima facie discriminatory. The minority saw no reason to interfere with the reasoning and decision of the arbitrator on this point. Nor was there a need to go further.

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