View cases - Stewart McKelvey

52given rule, that rule will not be [a BFOR]". It follows that a rule or standard mustaccommodate individual differences to the point of undue hardship if it is to befound reasonably necessary. Unless no further accommodation is possible withoutimposing undue hardship, the standard is not a BFOR in its existing form and theprima facie case of discrimination stands.Was the standard adopted for a purpose rationally connected to the performance of the job?[188] The “neutral rule” in question here is the requirement to report for work in Vancouver tocover the shortage. In her closing argument, Complainant’s counsel stated that she did notchallenge that the ability of CN to require unprotected employees to be forced to cover shortagewas rationally connected to its stated purpose of being able to move workers quickly to thoselocations which were short to allow it to keep its trains moving. She added that the rule itselfincludes the ability of a Conductor to not go when forced, if there is a “satisfactory reason”.2010 CHRT 22 (CanLII)Did the employer adopt the particular standard in an honest and good faith belief that it wasnecessary to the fulfillment of that legitimate work-related purpose?[189] Again the Complainant does not challenge the honest and good faith belief that from anoperational point of view, CN needed the ability to force employees to cover shortages. Theevidence from both the Union representatives and CN was that provisions to this regard werenegotiated as part of the Collective Agreement.Has CN established that it could not accommodate the Complainant without undue hardship?[190] CN’s third and final hurdle is to demonstrate that the impugned standard is reasonablynecessary for the employer to accomplish its purpose. At this stage, CN must establish that itcannot accommodate the Complainant and others adversely affected by the standard withoutexperiencing undue hardship. In other words, since the Complainant was adversely affected onthe ground of her family status by the standard of forcing employees to cover shortages, could CNaccommodate her without experiencing undue hardship?