(modified from “Accommodating the Mentally Disabled Employee: The Union Perspective” by Catherine Sullivan, BC Government & Service Employees’ Union, Burnaby, BC, with the assistance of Law Co-op Student Patrick Hayes, for the Continuing Legal Education Society of British Columbia, November 2008)
Duty of Fair Representation and Accommodation
- Accommodation is a multi-party responsibility. The Central Okanagan School District No. 23 v. Renaud, (1992) S.C.J. No. 75, established the scope of union’s duty to accommodate:
- A union bears a duty to accommodate if it becomes a party to discrimination.
- A union can become a co-discriminator and acquire a duty to accommodate by:
- participating in the formulation of a discriminatory work rule, or collective agreement provision, or
- obstructing the Employer’s reasonable efforts to accommodate an employee.
- The union and the Employer share the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect. They are equally liable if nothing is done.
- The Employer is usually in a better position to facilitate accommodation, and is therefore expected to initiate the process.
- The union’s duty arises if its cooperation or involvement is required to make the accommodation possible.
Similar to the employer, unions can satisfy the duty to accommodate by demonstrating undue hardship. The test for undue hardship can be met by demonstrating prejudice to other union members: “Any significant interference with the rights of [other members] will ordinarily justify the union in refusing to consent to [an accommodation measure].” (Renaud, para. 38)
However, some interference with rights of other members is permissible. For example, interference with seniority rights has been permissible by some tribunals.
Lastly, the union is responsible for ensuring its policies, processes and procedures will not have a discriminatory effect on individuals or groups within the union.
The Traditional View of the Duty of Fair Representation
The union’s control of the grievance process includes the authority to decide whether to pursue a grievance to arbitration, and to settle a grievance on the member’s behalf.
The union’s authority is limited, however, by the duty of fair representation, which prohibits a union from representing a member in a manner that is arbitrary, discriminatory or in bad faith. In the labour context, the term “discriminatory” is interpreted broadly, in the sense of singling out a person for adverse treatment based on irrelevant considerations. This includes, but is not limited to, discrimination based on prohibited grounds under human rights legislation.
In general, Labour Relation Boards have held unions to a reasonableness standard in the conduct of grievances. The union must have put their mind to case and came up with a reasoned decision whether to proceed or not.
Representing Members with Mental Health Disabilities
- K.H. v CEP Local 1-S  S.L.R.B.D. No. 44 (Sask. Labour Relations Board), and Bingley v. Teamsters, Local 91 ,  C.I.R.B. No. 291 (Canadian Industrial Relations Board) established that unions will be held to a higher standard in representing members with mental health disabilities. These cases suggest that when a member has some kind of disability, the union must not only handle the grievance in an “ordinary” manner, but has to proactive, more attentive and put some extra effort into the case.
- In Bingley, the Board established guidelines to evaluate whether the union satisfied its duty of fair representation are:
- whether the union’s intervention was reasonable where the Employer failed to implement appropriate accommodation measures;
- whether the quality of the process that allowed the union to come to its conclusion was reasonable
- whether the union went beyond its “usual’ procedures and applied an extra measure of care in representing the employee
- whether the union applied an extra measure of assertiveness in dealing with the Employer
Issue of Member’s Mental Capacity
The obligation to investigate mental capacity may arise because, in many cases, a symptom of their disability is denial of a disability or they may be reluctant to disclose or discuss their condition for fear of stigma or negative consequences.
Thus, the following questions may arise:
- What is the union’s duty to a member who fails to disclose a mental disability?
- Should a union investigate a griever’s competency?
- What is the union’s responsibility if the griever refuses to cooperate is incapable of participating in the process or refuses to provide necessary medical information?
- To what extent does the griever have a duty to facilitate the grievance process?
It may or may not be possible, in such cases, for union representatives to identify possible mental health issues arising from observations made by the Employer or by the union in relation to the griever’s behaviour. So, is there and to what extent does a union have an obligation to investigate the mental capacity of a griever?
In Canada Safeway and U.F.C.W. Local 401 (1992), 26 L.A.C. (4th) 409, the arbitrator commented on the employer’s duty to investigate the competence of a griever. In that case, the arbitrator held that, even though the griever had failed to disclose his mental disability, the employer was obliged to investigate because the nature of the disability was such that:
“a reasonable person observing his conduct would conclude that his behaviour was abnormal and that he would probably benefit from professional help.”
The arbitrator emphasized that professional expertise was not always required to identify the issue of mental capacity. In the arbitrator’s view, the obligation to investigate mental capacity arises because, in many instances, employees with mental health disabilities will be reluctant to disclose or discuss their condition.
The principle in Canada Safeway may also apply to unions in their handling of grievances.
In Love v. Teamsters Local 132,  O.L.R.B.D. No. 509, the Ontario Labour Relations Board addressed the extent of a union’s obligation to investigate the capacity of a griever with a mental health disability. In that case, the griever was uncooperative throughout the grievance process, and denied that he had substance abuse problems. The union decided not to proceed to arbitration, which prompted the griever to file a duty of fair representation complaint. The griever alleged that the union had failed to account for his addiction in its handling of the grievance.
The Board was reluctant to interfere with the union’s decision in light of the griever’s “assertion of competence and the lack of any clear evidence to contradict that assertion.” This was not a case, like Canada Safeway, where it was apparent based on the griever’s behaviour, that he likely suffered from a mental health disability.
The Board acknowledged the difficulties inherent in dealing with grievers with mental health disabilities, and found that the union had acted reasonably in the circumstances:
Unions attempting to represent members with possible mental disabilities face difficult challenges that can compromise their ability to get clear instructions and/or the ability of the member to accept reasonable recommendations necessary for the mounting of an adequate defense. In this case, Love’s refusal to accept that he was suffering from substance abuse and/or psychological problems meant that he continued to refuse to cooperate in the provision of medical evidence which might have resolved the company’s concerns about these areas, and would have been important in order to mount a successful case at arbitration. In these circumstances, and with an apparent lack of concern on Love’s part to respond to the union and/or to participate effectively in his own defense, the union decided, after obtaining the advice of counsel and seeking the approval of the membership, that the case was very unlikely to succeed at arbitration and therefore chose not to proceed. (para. 45)
While it may have been preferable that the union simply take its chances at arbitration, given the griever’s length of service and his unfortunate situation, and particularly given the union’s apprehension that he may indeed have been suffering from a substance abuse problem, albeit one he refused to admit, the Act does not permit such secondguessing of a union’s analysis with the benefit of hindsight. (para. 47)
In cases where a member denies health problems and refuses to pursue a medical defense in response to a workplace allegation, the union representative has to ensure that they have well documented their attempts to request this information and the member is uncooperative. This is to minimize a union’s liability for a failure to provide that evidence (over the member’s objections) at a future hearing. (See Breeden v. West Vancouver Professional Fire Fighters’ Union,  B.C.L.R.B.D. No. 376 where the arbitrator found the union was justified in not proceeding further when a griever could not be convinced to provide a necessary consent to obtain medical information.)