View cases - Stewart McKelvey

[88] Replacing the Recaust Operator and ARO with the ARO and Utilityman would be asignificant change. Although the likelihood of an emergency shut down is low, should anemergency occur, this would be precisely the sort of situation where the significant additionaltraining and experience a Recaust Operator has could make an enormous difference to the safetyof the equipment and of all workers in the area. I am satisfied that substituting the Utilityman onhis shift for Mr. Pannu as a person who would perform the shut down in an emergency would betotally incompatible with the purpose of the emergency procedure.[89] However, the evidence also established that, when a Recaust Operator is absent, an AROwho is trained as a Recaust Operator can work as a relief Recaust Operator at that rate of pay.Similarly when an ARO is absent, a Utilityman trained as an ARO can work as a relief ARO.Skeena implicitly considers acceptable the increase in risk represented by the relief workers’relative lack of experience on shifts where the regular Recaust Operator and/or ARO is absent.Thus, training the Utilitymen and AROs on Mr. Pannu’s shifts as relief AROs and RecaustOperators would not be totally incompatible with the purpose of the emergency procedure.Would it constitute undue hardship?[90] The Supreme Court of Canada has enumerated a number of factors relevant to thedetermination of what amount of hardship is undue. These include financial cost, disruption ofthe collective agreement, problems relating to the morale of other employees and, where safety isan issue, the magnitude of the risk and who bears it: Central Alberta Dairy Pool v. Alberta(Human Rights Comm.), [1990] 2 S.C.R. 489; Central Okanagan School District, No. 23 v.Renaud, [1992] 2 S.C.R. 970.[91] Skeena presented evidence and made submissions on these factors. However, the factthat the Union was not a party to the complaint against Skeena and that no Union witness wascalled means that the evidence of the effects on the collective agreement and on other employeesis not complete. This is the sort of case where the Union’s perspective, along with theComplainant’s and the employer’s views would have enabled the Tribunal to get a much betterpicture of the impact of the proposed accommodation.[92] Training sufficient Utilitymen and AROs as relief AROs and Recaust Operators to ensurethat the Utilityman and ARO on Mr. Pannu’s shift were competent to perform the shut down22