Author Topic: Refusing his/her release  (Read 8707 times)

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Offline stellarpanther

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Re: Refusing his/her release
« Reply #50 on: March 11, 2018, 10:51:04 »
What is the CAF's duty to accommodate?  I know for example there are several civilians workers who are accommodated based family reasons, they seem to come and go as they please and have fluctuating schedules.  I'm not just looking at that area but all of it.  I was asked this question once by someone and I didn't really know the answer to it other than to say that we are doing more and more of it.
 

Offline Blackadder1916

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Re: Refusing his/her release
« Reply #51 on: March 11, 2018, 13:59:44 »
What is the CAF's duty to accommodate?  I know for example there are several civilians workers who are accommodated based family reasons, they seem to come and go as they please and have fluctuating schedules.  . . .

To accommodate whom?  Since you use "civilian workers" as your example, remember that there are no civilians in the Canadian Armed Forces.  Civilian employees such as you mention are (I assume) employed by the Department of National Defence.  There is a legal difference.

Regardless, all are subject to the same human rights laws.

Duty to Accommodate: A General Process For Managers
Limits on the Duty to Accommodate
Quote
Accommodation requires a balance between the rights of an employee or candidate and the right of an employer to operate a productive workplace.

Duty to accommodate, however, is not limitless. As a manager, you are not required to do the following:
•Accommodate where undue hardship to the employer (health, safety and cost) would result.
•Create an unnecessary job.
•Retain an employee who is unable to meet his or her employment responsibilities despite accommodations. For example, you are not required to tolerate substandard performance or unpredictable attendance. Employees, once accommodated, are expected to meet bona fide occupational requirements and standards. It is important to ensure that all employees understand performance expectations. Accommodation aims to enable employees to achieve employment and performance standards.
•Hire a candidate who, after being accommodated during the selection process, does not meet the essential qualifications required for the position.
•Accommodate an employee's persistent absences if the absences are unrelated to a disability or any other prohibited ground. This situation is a management issue and must be resolved through proper mechanisms, such as the performance management or disciplinary process, depending on the circumstances.

How do you determine undue hardship?

Employers are required to provide accommodation up to the point of undue hardship. There is no set formula for deciding what constitutes undue hardship. To help determine undue hardship, consider health, safety, cost, collective agreements, the interchangeability of the workforce and facilities, and the legitimate operational requirements of the workplace. You should make serious, conscientious and genuine best efforts, document your efforts, and include input from the employee and the employee representative, where applicable, as well as from your organization's human resources/labour relations functional specialists

It is not enough to offer assumptions or impressions about what is or is not possible. For example, simply declaring that the cost is too high or that there is an unreasonable risk to health and safety does not constitute undue hardship. To prove undue hardship, you must provide substantial evidence and document it.

What is a bona fide occupational requirement?

The law recognizes that a limitation on individual rights may be reasonable and justifiable in employment situations.

For example, individuals employed as truck drivers must meet vision standards and have an appropriate driver's licence. If an employer can show that there are specific requirements that every individual performing a specific job must meet because they are essential to the effective and safe performance of the job, then no duty to accommodate arises because this does not constitute discrimination.

How do you establish a bona fide occupational requirement?

The Supreme Court of Canada established a three-step process (Meiorin and Grismer cases, both in 1999):
1.The rule or standard adopted must be connected to the functions of the position.
2.The rule or standard is adopted in good faith on the grounds that it is necessary.
3.The rule or standard is reasonably necessary to accomplish the purpose or goal, in the sense that the employer cannot accommodate individuals who possess the characteristics of a particular group without incurring undue hardship.


DAOD 5015-0, Workplace Accommodation
Quote
2. Definitions

duty to accommodate (obligation de prendre des mesures d'adaptation)
Duty to accommodate means the obligation of the DND to adopt measures to eliminate disadvantage to employees and prospective employees as a result of a rule, policy, practice or barrier that has or may have an adverse impact on individuals or designated groups protected under the Canadian Human Rights Act or Employment Equity Act.

undue hardship (contrainte excessive)
Undue hardship means the limit to which employers and service providers are expected to accommodate in a given situation, taking into consideration, but not limited to, the following factors:
•availability of options for accommodation;
•realistic ability to meet the costs associated with accommodation; and
•health and safety of the public, DND employees and CAF members.

. . .

3.4 Under the CHRA, the DND and the CAF have a duty to accommodate the employment-related needs of DND employees and prospective employees that arise from a prohibited ground of discrimination up to the point of undue hardship.

. . .

Requirements

3.7 The DND and the CAF shall:
a.establish and maintain an effective system for accommodating the employment-related needs of DND employees, including members of designated groups;
b.provide and maintain a workplace environment that is accessible, non-discriminatory and inclusive;
c.ensure that all employment systems, policies, practices, work arrangements and DND facilities are free of discriminatory barriers;
d.respond in a timely, confidential, sensitive and effective manner to all employment-related requests for accommodation;
e.provide training on diversity to managers and supervisors, including CAF members who act as supervisors or managers of DND employees; and
f.develop, communicate and implement the Workplace Accommodation - Guidelines.

3.8 DND employees shall:
a.identify and communicate their employment-related needs;
b.work cooperatively to find optimal solutions to accommodate their needs; and
c.demonstrate flexibility throughout the process.

But it is the principle of "universality of service" that distinguishes CAF members from DND employees.

DAOD 5023-0, Universality of Service
Quote
2.2 To execute this mission the CAF must be given broad authority and latitude in utilizing CAF members and their skills. The statutory basis for this authority is section 33 of the National Defence Act. The fundamental importance of this authority to the functioning and effectiveness of the CAF is recognized in subsection 15(9) of the Canadian Human Rights Act which provides that the duty to accommodate under subsection 15(2) of that Act is subject to the principle of universality of service. Under this principle, CAF members must at all times and under any circumstances perform any functions that they may be required to perform.

. . .

2.4 The principle of universality of service or "soldier first" principle holds that CAF members are liable to perform general military duties and common defence and security duties, not just the duties of their military occupation or occupational specification. This may include, but is not limited to, the requirement to be physically fit, employable and deployable for general operational duties.

The requirements needed to meet universality of service are set out in medical, fitness and performance (and other) standards.  In most cases when these standards have been legally challenged, the CAF has been able to defend them as bona fide occupational requirements (BFOR), or when unable to defend then existing practises the result has been a change to policies that could meet a BFOR.


« Last Edit: March 11, 2018, 14:02:48 by Blackadder1916 »
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Offline stellarpanther

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Re: Refusing his/her release
« Reply #52 on: March 11, 2018, 14:27:01 »
To accommodate whom?  Since you use "civilian workers" as your example, remember that there are no civilians in the Canadian Armed Forces.  Civilian employees such as you mention are (I assume) employed by the Department of National Defence.  There is a legal difference.

Regardless, all are subject to the same human rights laws.

Duty to Accommodate: A General Process For Managers
Limits on the Duty to Accommodate
DAOD 5015-0, Workplace Accommodation
But it is the principle of "universality of service" that distinguishes CAF members from DND employees.

DAOD 5023-0, Universality of Service
The requirements needed to meet universality of service are set out in medical, fitness and performance (and other) standards.  In most cases when these standards have been legally challenged, the CAF has been able to defend them as bona fide occupational requirements (BFOR), or when unable to defend then existing practises the result has been a change to policies that could meet a BFOR.

Sorry I wasn't clear.  I was referring to accommodating CAF mbr's. I know we already do these things for the civilians working for DND.  I heard a CO not that long ago say we now have a duty to accommodate mbr's much more than we used to such as allowing mbr's time off for family appointments or to work different hours as long as it doesn't negatively affect the unit etc.  Apparently though this is something that is with CMP because of the push back from several unit's especially the Svc Bn's and combat units were they have a more traditional attitude.


Offline Pusser

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Re: Refusing his/her release
« Reply #53 on: March 12, 2018, 10:57:50 »
Sorry I wasn't clear.  I was referring to accommodating CAF mbr's. I know we already do these things for the civilians working for DND.  I heard a CO not that long ago say we now have a duty to accommodate mbr's much more than we used to such as allowing mbr's time off for family appointments or to work different hours as long as it doesn't negatively affect the unit etc. Apparently though this is something that is with CMP because of the push back from several unit's especially the Svc Bn's and combat units were they have a more traditional attitude.

I'm not sure those things really fit under the definition of "accommodation."  However, some folks need to be reminded of one of the principal tenets of leadership:  Know your people and promote their welfare.  The two examples given above are simple things that show people that the organization cares about them and their families (we talk a lot about the importance of families in the military, so we really should show that we mean it).  This creates loyalty and loyalty is essential to success in operations.  No one should ever assume they have a "right" to take time off or work different hours for family situations to the detriment of a unit's operations, but if there is no compelling reason to hold members to a rigid time schedule, where it is the need to force it?  The world does not only turn between 0800 and 1600.  In fact, flexible working hours can actually make your unit more flexible because you can have the workplace occupied for longer (e.g. 0600-1800 if people come and go at different times).
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Offline Brihard

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Re: Refusing his/her release
« Reply #54 on: March 12, 2018, 11:06:32 »
I believe the term “duty to accommodate” is being used here in a casual, conversational sense, when that same wording also has a very specific legal meaning that uniquely does not apply to the CAF. I can see where the confusion is coming from.
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