Nobody’s perfect – and accommodation doesn’t have to be either
Employers have an obligation to accommodate but it doesn’t have to be exactly the way the employee wants it
Dec 6, 2011
By Jeffrey R. Smith
“In a perfect world… ”
Most of you are probably familiar with that intro, which is usually followed by something we wish was the case but the cold, hard, reality is significantly different.
This applies to many circumstances, including the employment relationship. The employer doesn’t always get what it wants, but neither does the employee. What usually works is the balance of interests in order to foster the best possible relationship. And when an employee needs to be accommodated for a reason protected under human rights legislation, the concept of finding the right balance of interests still applies.
However, most of the time the employer holds the balance of power in the employment relationship and this is often reflected in the way courts and arbitrators handle employment law cases — leaning more towards the employee.
But in accommodation cases, it’s been recognized there is a duty on both sides to co-operate in order to ensure an arrangement is put in place that works for both. But sometimes employers may wonder how much they are expected to do. There have been situations where an employer though it was going the extra mile, but still got in trouble because it could have done more. But sometimes the employee just expects too much.
Recently, a UPS package truck driver in Ontario complained his employer wasn’t doing enough to accommodate his religious beliefs. He was Jewish and needed to be at his synagogue for worship by sundown on Jewish holidays — failure to do so was considered a sin in his faith. Though his work hours were during the day, he usually needed to leave work early on holidays to give himself enough time to go home, get ready and get to the synagogue on time, and UPS allowed him to do this.
However, there were a few occasions where the driver wasn’t able to leave work early enough and had to scramble to get to the synagogue on time. This caused him some stress and he felt UPS wasn’t fully living up to its duty to accommodate.
But an arbitrator disagreed, finding the employer was doing enough by letting him leave work early and the nature of his job as a truck driver meant other variables — such as traffic — came into play and UPS couldn’t be expected to have to do something about them. The driver had only had to scramble and risked being late a handful of times, which was acceptable. The employee’s demand he always have plenty of time to go from work to the synagogue was only possible in “the perfect world,” not “the real world,” said the arbitrator.
Is it reasonable for an employer to be expected to always accommodate an employee according to the employee’s request, or is it okay for accommodation to be “most of the time?” What’s the threshold between accommodation and violating an employee’s human rights?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at employment law from a business perspective. He can be reached at firstname.lastname@example.org. For more information, visit www.employmentlawtoday.com.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.