What is the test for determining the basis of an award in an employment tribunal case?

British Columbia, Canada


The following excerpt is from United Steelworkers of America v. Fording Coal, 1999 BCCA 534 (CanLII):

In all three cases at bar the parties disagree on the characterization of the basis of the award. The employers argue in each case that the basis of the award was the arbitrator’s consideration of the duty to accommodate. This expression is shorthand for a principle devised by the courts to respond to adverse effect discrimination, put this way by the majority in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489 at 517: …where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

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