Select November 2005 Decisions

Earnshaw v. Lilydale Cooperative and UFCW, Local 1518 (No. 2), 2005 BCHRT 523

The Complainant had a chronic condition and was accommodated in a light duty position. When the Employer decided to transfer two parts of the plant to Edmonton, the Complainant chose to voluntarily sever her employment. She then filed a human rights complaint against the Union and Employer alleging, among other things, that she chose voluntary severance because she was advised that there would be no light duties remaining at the plant and that she would not be accommodated. The Union denied the allegations and applied to dismiss the complaint against it. The Human Rights Tribunal held that by virtue of the Union’s application, the Complainant was required to respond to the Union’s position that the complaint against it was too vague and unspecified. The Tribunal found the Complainant failed to provide meaningful particulars about the alleged discriminatory conduct and dismissed the complaint against the Union as having no reasonable prospect of success. In analyzing the complaint against the Employer, the Tribunal noted that while both an employer and union have a duty to accommodate, the legal nature of those obligations is quite distinct. The Tribunal held that it is quite possible for an employer to be liable for a failure to accommodate where a union is not. The Tribunal decided to proceed with the complaint against the Employer.

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