Permanent Accommodation: What Evidence Establishes Undue Hardship?

An employee performs modified duties for almost two years. Medical evidence then confirms that the restrictions are permanent. The employer ends the arrangement, explaining that the modified duties do not constitute a required permanent position.

Does that establish accommodation to the point of undue hardship?

Everall v. Newcrest Red Chris Mine Ltd., 2026 BCHRT 217, decided October 15, 2026, illustrates the issue. The result warrants caution because the employee did not respond to the employer’s dismissal application. More fundamentally, the decision raises a question about the evidence needed to distinguish reasonable job restructuring from creating a position for which there is no operational need.

The Modified Work

Mr. Everall worked as a Serviceman at a mine. Following an arm injury, he performed administrative and support duties for nearly two years while other employees covered his servicing work.

When his restrictions became permanent, Newcrest said it could not continue that arrangement indefinitely. The duties were ordinarily performed by his supervisor and other employees, and no suitable vacancy matched his restrictions and qualifications.

The Tribunal dismissed his complaint without a hearing, finding Newcrest reasonably certain to establish accommodation to undue hardship. The substantive analysis appears at paragraphs 33–41.

Permanent Disability Does Not End the Duty

The governing principle remains Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, 2008 SCC 43.

At paragraphs 16–17, the Supreme Court distinguished a fundamental alteration of working conditions from reasonable adjustments that enable an employee to work. The employer may have to lighten duties, change schedules or permit transfers where this can be done without undue hardship. Rigid rules are inappropriate.

A permanent restriction therefore changes the accommodation inquiry; it does not automatically resolve it. The question becomes whether a sustainable arrangement is reasonably available, rather than whether the employee will eventually resume every original duty.

The Controversial Evidentiary Question

The difficult issue is what proved that the existing arrangement could not reasonably continue.

Newcrest’s account was that the duties did not constitute a required stand-alone position. The Tribunal treated the employer’s evidence as uncontradicted. It also considered the absence of suitable alternative positions, including the employee’s lack of qualifications for a senior maintenance-planning role.

Mr. Everall had filed only his complaint form and did not respond to the dismissal application. The Tribunal expressly declined to speculate about evidence he might later provide.

That procedural setting matters. The decision should not be read as establishing that the employer’s characterization of work as “temporary” or “borrowed” will always prove undue hardship.

An arrangement sustained for two years creates an obvious factual question: what prevented it from continuing?

Past accommodation does not conclusively establish permanent feasibility. An employer may absorb temporary disruption while expecting recovery. Nevertheless, the actual operation of the arrangement is relevant evidence of what the organization can do.

The reasons do not quantify the cost of continuation or detail the operational burden on other workers. Their focus is on the nature of the duties, the absence of a required position and the lack of a suitable alternative vacancy. This leaves room to question whether a contested evidentiary record would have supported the same result.

Productive Work or an Unnecessary Position?

The expression “creating a new position” requires care.

Accommodation frequently changes the allocation of work. The fact that a combination of duties does not correspond to an existing job description cannot, by itself, settle whether the arrangement is required.

Consider two situations.

In the first, the employee performs a substantial volume of necessary administrative work. This frees a supervisor to undertake other operational responsibilities. Colleagues absorb some physical duties without excessive workload or additional cost.

In the second, the employee has insufficient useful work, necessary servicing duties remain uncovered, and other employees must regularly work overtime.

Both arrangements might be described as assembling duties from existing positions. Their implications for undue hardship are plainly different.

The inquiry should address the practical consequences of the proposed arrangement, rather than rely entirely on its label.

What Evidence Would Address the Question?

In a contested case, relevant evidence could include:

• The volume and continuing need for the modified work;
• The employee’s productivity and the value of the work performed;
• Duties transferred to colleagues and the resulting workload;
• Overtime, additional staffing or service delays;
• Health and safety consequences;
• The feasibility of a different distribution of duties; and
• Available alternative work, including reasonable training requirements.

Not every case requires detailed financial calculations. The necessary evidence will depend on the alleged hardship. But the evidence should explain why the proposed accommodation crosses the boundary into undue hardship.

The employer need not prove literal impossibility. Nor should the employee’s permanent restrictions substitute for an examination of what work remains reasonably available.

Alternative Work and Training

The possibility of another role requires an equally practical assessment.

An employer may have sound reasons for concluding that an employee cannot be placed in a senior position requiring substantial specialist experience. That conclusion should not become a general proposition that accommodation never requires training.

The relevant questions include the employee’s transferable skills, the actual qualification gap, the training required, and whether the position’s requirements are genuinely necessary.

A short period of familiarization is different from extensive retraining for a substantially different profession.

The Limits of the Decision

Everall was a preliminary dismissal ruling on a record the employee did not answer. It was not a determination after competing witnesses had been examined about productivity, staffing burdens or the feasibility of permanent restructuring.

The employer’s evidence carried the application. The absence of a response helps explain the outcome, but also limits the decision’s value in a case where the operational evidence is disputed.

The sound proposition is a qualified one: successful temporary accommodation does not necessarily require an identical permanent arrangement. Equally, permanent disability does not itself establish undue hardship.

The unresolved evidentiary issue is whether continuing the arrangement would genuinely require an unnecessary position, or whether it would amount to a reasonable redistribution of productive work. That distinction must be demonstrated, rather than assumed.