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Expanded Case Summaries – May 2012

1) An employee who was found to be “nesting” on the job (i.e., having purposely set out to sleep) was reinstated with a “time-served” suspension in place of the termination, with the result being that the termination was converted into a 16 month suspension without pay. Dupont Canada (2011), 208 L.A.C. (4th) 174 (Baxter)

The employee was terminated after having been found sleeping on the job. He had been employed as a control operator in a safety sensitive workplace, and when discovered, appeared to have been “nesting” (i.e. having purposely set out to make a bed to go to sleep, as opposed to having inadvertently fallen asleep).

Although the employee was found to lack credibility, he was reinstated with a sixteen month “time-served” suspension in place of the termination.

2. An employee who had resigned due to illness was subsequently reinstated on the basis that she did not have the requisite intention to resign. In coming to that conclusion, the arbitrator commented that “when the disability is pivotal to the resignation, the employer has an obligation to accommodate rescission of the resignation when it is obvious there was no real intent to sever the relationship. First creating (or contributing to) the reason for the resignation, and then holding firm on acceptance of the objective resignation, is not accommodating the disability.” Saskatchewan Assn. of Health Organizations (2011), 207 L.A.C. (4th) 134 (Hood)

The employee, who had telephoned her employer to make arrangements to return to work following an illness, subsequently called back to advise that she was resigning due to illness. The employer later refused to permit her to retract her resignation. It was the union’s position that the employee’s supervisor made her feel guilty for having been absent and exerted pressure on her to quit. In finding that the employee did not have the requisite intention to resign, the arbitrator stated:

There is another aspect of this case that is troubling. The employer has a duty to accommodate a disability short of undue hardship. Included in this duty is generally the obligation to accommodate an employee who is absent from work due to health reasons. It belies this obligation to take advantage of a disability to bring about a resignation that would sever the relationship. In circumstances such as this, when the disability is pivotal to the resignation, the employer has an obligation to accommodate rescission of the resignation when it is obvious there was no real intent to sever the relationship. First creating (or contributing to) the reason for the resignation, and then holding firm on acceptance of the objective resignation, is not accommodating the disability.

3. An employee who removed money from the employer’s cash register was terminated and then subsequently reinstated pursuant to a last-chance agreement. Rather than return to work as agreed, the employee advised the employer that he was recovering from leg surgery. When the employer discovered that the employee had been lying, he was terminated for dishonesty pursuant to the provisions of the last-chance agreement. The union, for its part, contended that the enforcement of the last-chance provision would amount to discrimination based upon a mental disability

The arbitrator accepted that the employee suffered from an “adjustment disorder” that constituted a handicap. He rejected the union expert’s diagnosis of a dysthymic disorder and generalized anxiety disorder. The union’s medical expert was found to have lacked objectivity, and his diagnoses did not meet all of the definitional elements of the DSM (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders; most often referred to as the DSM-IV, i.e., the fourth edition).

The union contended the employee’s misconduct was linked to his adjustment disorder (i.e. the disability) in two respects. It contended the employee suffered from a cognitive impairment that adversely affected his ability to make sound decisions, and further, that the stigma associated with mental illness led the employee to fraudulently assert a physical incapacity. Both were rejected as constituting a significant cause of the employee’s dishonest conduct. The termination that flowed from the last-chance agreement was upheld. Ontario (Liquor Control Board) (2011), 211 L.A.C. (4th) 197 (Brown)

The employee, who had admitted taking a sum of money from the employer’s cash register, was terminated and then subsequently reinstated pursuant to a last-chance agreement. He did not report for work as scheduled by the agreement but instead, on several occasions, advised his employer that he was not yet able to return because of an extended recovery necessitated by having undergone leg surgery. There had been no leg surgery, and the employer ultimately terminated the employee for dishonesty pursuant to one of the terms of the last-chance agreement. The union contended that the enforcement of the last-chance provision would amount to discrimination based upon a mental disability.

The employer sought to have the employee provide documentation from his doctor. The employee failed to inform his doctor that he had lied to the employer regarding the reason why he had not returned to work (i.e., the non-existent leg injury). Instead, he advised his doctor that he was suffering from symptoms that were consistent with depression and anxiety.

The arbitrator characterized the central issue as being “why the grievor lied about the surgery.”

Both parties retained a medical expert. The union’s expert conducted five different psychological tests. In making his diagnosis of dysthymic disorder and generalized anxiety disorder, the expert testified that he relied in part on the Minnesota Multiphasic Personality Inventory 2. That test produced both raw scores and computer-generated narrative. The evidence established that while the expert’s report incorporated portions of the computer generated narrative, the incorporated portions had been shorn of passages that would reflect poorly on the employee’s motivation for psychological change.

The employer’s expert, although not having interviewed the employee, concluded that the employee probably suffered from an adjustment disorder at the relevant time. He opined that the employee’s intent to deceive was not impaired by any mental disorder. It was his view that there was no nexus between the dishonest behaviour and a psychiatric disorder. He concluded that the employee most probably had “retained the capacity to understand the consequences of his actions and to form the intent to act, including to deceive.”

The arbitrator commented that the union’s expert was less than objective when he adopted parts of the interpretive report that were “cleansed … of passages reflecting poorly on the grievor.” He stated that he was concerned that a “similar lack of impartiality may have tainted his opinion that the grievor was impaired in his ability to process information and make sound decisions.”

The arbitrator concluded that the union expert’s diagnosis of generalized anxiety disorder was made without reference to the DSM criterion that a person’s anxiety be out of proportion to the actual situation. That criterion was not mentioned in his report, and the arbitrator accepted the evidence of the employer’s expert that the employee’s anxiety did not satisfy that requirement. He also accepted the evidence of the employer’s expert that the diagnosis of dysthymic disorder had not met the criterion that the symptoms must have prevailed for at least two years prior to the condition being established.

The arbitrator found that the employee’s adjustment disorder was a handicap, for it was accompanied by “clinically significant symptoms requiring professional intervention [and the disorder] lasted months not days.” It was his view that “a malady this serious is a handicap because it materially affected the grievor’s life.”

On the question of whether the employee’s misconduct was attributable to the disability, the arbitrator noted that the employer had relied on arbitrator Christie’s decision in Canada Post Corp., which in turn had adopted the test of arbitrator Ish in Canada Safeway Ltd. (1999), 82 L.A.C. (4th) 1 (Ish). There arbitrator Ish had stated:

Once an illness has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct. The mere presence of psychological stress does not automatically lead to improper behaviour such as theft …

If a linkage between aberrant conduct and the illness or condition is established, an arbitration board must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor’s conduct less culpable.

The arbitrator commented that many of the union’s authorities emanated from British Columbia where that province’s Labour Relations Board had mandated a non-culpatory approach in cases where a disability significantly impaired the employee’s ability to choose to act otherwise. He concluded that

In my view, there is little practical difference between the significant-impairment-of-choice test from British Columbia and the sufficient-displacement of responsibility test in Canada Post. If choice is significantly impaired that may constitute a sufficient displacement of responsibility

(It should be noted however that the British Columbia Labour Relations Board had overturned the “significantly impaired” test on the basis that it was unworkable: see footnote 1445 at page 738 of the Manual).

The union suggested that there was a reverse onus or a low threshold “for proving a causal connection between disability and misconduct.” The arbitrator concluded that these assertions were not established by the arbitral authorities that had been cited.

On the issue of causation, “the union contended the grievor’s misconduct was linked to his disability in two ways. The first argument is he was cognitively impaired and that impairment adversely affected his ability to make sound decisions. The second is the stigma associated with mental illness led him to fraudulently assert a physical incapacity.”

The arbitrator accepted the opinion of the employer’s expert that the employee was not cognitively impaired. On the issue of stigma, the arbitrator commented that

a desire to avoid stigma may play a significant role in an employee’s decision not to disclose a mental illness [and that] in some circumstances stigma may play a significant role in causing an employee with a mental illness to misrepresent the resulting disability as having a physical cause. Faced with such a misrepresentation, an adjudicator should weigh all the circumstances when determining what role, if any, stigma played. The presence of a mental illness is not a sufficient basis for concluding stigma played a significant role in the misrepresentation of the nature of the disability.

In rejecting the union’s “stigma” assertion, the arbitrator commented that while stigma may have deterred the employee from raising the issue of mental illness on the first request for a delayed return date, stigma did “not explain why he did not ask for a delayed return to work without mentioning any disability and without engaging in any deceit.” The arbitrator stated that whatever the employee’s initial motivation for lying, “his subsequent misconduct soon took on an element of cover-up.” He commented that “keeping his family doctor in the dark about the fictional surgery was important to the grievor because the doctor was likely to recognize the fiction, and such recognition could have a detrimental impact on what the doctor told the employer … In my view, even if stigma played a significant role in the grievor’s initial misrepresentation, it did not play a significant role in the subsequent cover-up.”

While the employee suffered from a disability, “it was not a significant cause of his dishonest conduct.” The terms of the last-chance agreement prevailed, with the grievance being dismissed.

 

4. The termination of an employee who had threatened a supervisor and three co-workers was upheld. The arbitrator concluded that while the employee suffered from a mental disorder (a bipolar manic condition), his handicap was not a causal factor in the employee’s improper conduct. There was no compelling medical evidence to support a claim of diminished responsibility. Benteler Automotive Canada Corp. (2011), 211 L.A.C. (4th) 264 (Rayner)

The employee had been terminated because of threats allegedly made to a supervisor and three co-workers. The union sought to adjourn the hearing indefinitely on the ground that the employee suffered from a bipolar manic condition that might impact his understanding of the nature of the proceedings and/or his ability to prepare his defence. However, the employee wished to proceed, and the arbitrator found that the medical evidence that was advanced did not support the assertions made in support of the requested adjournment.

The arbitrator stated that “while it is clear that the grievor suffers from a mental disorder, I do not find that his conduct is justified in any way by that disorder. Nor can I find that the penalty should be mitigated because of that disorder.” He commented that “there is no compelling medical evidence to support a claim for diminished responsibility.” In addressing the arbitral law, he stated:

In Weston Bakeries Ltd., (1973) 5 L.A.C. (2d) 38 the arbitration board concluded that a depressive neurosis did not negate the grievor’s blameworthy [state] of mind even in the face of some supporting evidence. The same conclusion was reached in Maritime Paper Products Ltd. (1991), 19 L.A.C. (4th) 1520 (sic). In my own award, Lear Seating Canada Ltd. (1993), 31 L.A.C. (4th) 311, I said that clear and cogent evidence was needed to establish that aberrant behavior is not culpable. In that case there was clear medical evidence to establish that conclusion. [Here, the] medical evidence falls short of demonstrating a lack of capacity and there is not medical evidence in the case before me to permit me to find that the grievor was not culpable.

The grievance was dismissed.

 

5. An arbitrator upheld the termination of an employee who had refused to undergo random testing for drugs and alcohol as required under a form of last-chance agreement that was negotiated to address his addictions. The random testing clause was found to have been “a bona fide and reasonable requirement in the circumstances.” There were no factors to justify the employee’s refusal to undergo the testing. Moreover, the employer’s actions in having accommodated the employee on many occasions led to the conclusion that the employer had accommodated the employee to the point of undue hardship. Thunder Bay (City) (2011), 212 L.A.C. (4th) 414 (Marcotte)

The employee was terminated after he refused to undergo random testing for drugs and alcohol as required under a form of last-chance agreement that was negotiated to address his addictions.

The employee had been employed as a bus driver. During a ten year period, he had entered at least four residential treatment programs designed to deal with alcohol or opiate addiction. The arbitrator accepted that prior to each of those occasions; the employee had been driving a bus with his addiction untreated. In 2005, the employee was returned to work subject to a number of conditions; one of which required him to submit to drug and alcohol testing prior to his return and then to random alcohol and drug testing for a six month period following that return. The conditions did not specify the consequences for non-compliance. His initial test was positive for cocaine, and he was once again suspended.

The employer subsequently agreed to reinstate the employee pursuant to a last-chance agreement that provided for random testing prior to the employee’s return and thereafter for a period of two years, with a further two year extension at the employer’s discretion. The agreement provided that “should he consume alcohol and/or a drug which interferes with his work performance or causes him to miss time, he shall be dismissed forthwith and shall not have the right to grieve such dismissal.”

Approximately three years later, the employee tested positive for alcohol and marijuana. He then went off work for ten months, and during that time, underwent further treatment for his addictions. Once again, the employer was prepared to consider reinstating the employee as a bus driver. However, the employee sought accommodation in a non-driving position. The employer refused this request on the ground that there was no medical documentation to support the request for accommodation. The employer presented a modified last-chance agreement but the employee and union refused to sign it.

The employee subsequently presented a letter from his physician suggesting that he be accommodated in a non-driving position because of “the unavoidably stressful tasks and duties of a transit operator …” After several months, the employer offered the employee a Service Technician position as permanent accommodation of his disability. He was reinstated subject to an agreement that he undergo random alcohol and drug testing. It included a provision that a failure to abide by any terms of the agreement would result in his immediate termination. The union refused to sign the agreement, but the agreement, as signed by the employee, acknowledged that he had been represented by the union in meetings that led up to the agreement. The employee tested negative prior to his reinstatement and then again, one month after his reinstatement. However, he refused a random test four months after his return. His evidence was that he had concluded, on the basis of research he conducted on the internet, that the requirement for him to undergo random drug and alcohol tests violated his human rights. He was suspended and then terminated.

In considering the validity of the agreement, the arbitrator commented that it was irrelevant in the circumstances that the union had not been a party or signatory to the agreement, for the “grievor, throughout the discussions over the terms of the [agreement], was represented by his Union, which negotiated its provisions on his behalf. Thus, the substance of the agreement ought not to give way to a matter of form because the lack of a Union representative signature does not detract from the fact of representation by it; the Employer and the Union properly expected the agreement would be honoured by the parties and by the grievor.”

The arbitrator began his analysis by considering whether random testing violated the employee’s rights under the Human Rights Code. He dismissed the contention that such a clause could only be valid in a safety sensitive position, stating that the distinction between safety sensitive positions and others arises in the context of a challenge to a policy requiring drug and alcohol testing as distinct from such a requirement in a return-to-work agreement.

The arbitrator found that requirement for random drug and alcohol testing as it related to the employee was prima facie discriminatory, for it arose out of the employee’s disability and imposed a condition that was not imposed on others. It was irrelevant that he agreed. Nevertheless, where there is a requirement that is prima facie discriminatory, that may not amount to discrimination where it is, in terms of section 11(1) of the Human Rights Code, “reasonable and bona fide in the circumstances.”

Arbitrator Marcotte then stated that the three part Meiorin test formulated by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) (Meiorin Grievance), [1999] 3 S.C.R. 3 was appropriate for determining whether the requirement that the employee undergo random drug and alcohol testing was a bona fide occupational requirement.

In terms of the first requirement, i.e., “that the employer adopted the standard for a purpose rationally connected to the performance of the job”, arbitrator Marcotte considered whether there was a need, having regard to the Service Technician position, for such monitoring. In his view, it was rationally connected to job performance in that there were safety risks inherent in the position. In terms of the second Meiorin requirement, the arbitrator likewise concluded “that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose.” He cited the numerous rehabilitative steps that had been taken and the relapses that followed, and concluded that the presence of the safety risks, and the employee’s tendency to relapse, led it to adopt its position in “an honest and good faith manner as necessary to ensure the grievor did not present a safety risk to himself and his fellow employees.”

Arbitrator Marcotte then considered the third step of the Meiorin test, as subsequently clarified by the Supreme Court of Canada in Hydro-Quebec, i.e., “that the standard is reasonably necessary to the accomplishment of that work-related purpose.” To satisfy that element, it must be shown that the employee cannot be accommodated short of undue hardship. In concluding that this step had been met, the arbitrator commented that not all of the employee’s duties could be arranged so as to “satisfactorily address the Employer’s legitimate concerns about safety risks.”

This is so because the health and safety risks involved in the workplace are associated with the grievor’s disability in the form of his chronic drug and alcohol dependency. That is, the health and safety risks are present, not by way of whatever duties the grievor may be assigned, rather, they are associated with his condition regardless of the duties he is required to perform. That being so, without the requirement for the grievor to undergo random drug and alcohol testing, the employer would not have the means to ensure the grievor reported for work with the ability to perform his duties without presenting a health and safety risk … Without the ability on the part of the Employer to require the grievor to undergo random testing, it would experience undue hardship.

Arbitrator Marcotte concluded that the requirement to undergo random drug and alcohol testing was “a bona fide and reasonable requirement in the circumstances.”

The arbitrator then considered whether the employee should be relieved from the terms of the agreement based on his professed view that his human rights were being violated by the testing requirement. The arbitrator considered the material that the employee had relied on and concluded that upon analysis, it did not endorse “the grievor’s view that the requirement for random drug and alcohol testing in his circumstances is a violation of his human rights.” In his view, he was not satisfied that the employee had an honest belief that the request for a random test was a violation of his human rights. He also commented that there was nothing in the agreement to require that the random test be based on reasonable cause. A “‘random’ test is just that, and by its nature requires no cause.”

Arbitrator Marcotte found that there were no factors that justified the employee’s refusal to undergo the random test. In upholding the termination, he stated that the employer’s actions in having accommodated the employee on many occasions led to the conclusion that the employer had accommodated the employee to the point of undue hardship.

 

6. An employer’s refusal to permit an employee to return to work was upheld on the basis that the employee (who became aggressive and violent without warning), continued to be a danger to himself and others. That conclusion was reached after considering the report flowing from an Independent Medical Examination that had been ordered by the arbitrator. The arbitrator set forth a fourfold test for determining the limit of “reasonable” accommodation in a matter such as this. Lear Corp. (2011), 212 L.A.C. (4th) 332 (Hunter)

The employee commenced employment, as a welder, in 1983. In 1992, he suffered a non-work related head injury and was in a coma for three days. He was unable to return to work for the next three years. Thereafter, he returned to work on three different trial periods: August, 1995 (for 10 days); September, 1997 (for six weeks); and August, 1999 (for 10 weeks). When he was not at work, he was receiving long term disability.

The employee returned to work for the fourth time in February 2003 in a janitorial position. During the period that followed, he was frequently, and without warning, aggressive toward other employees. In November of 2005, he started-up a heavy metal stamping machine, without consent or permission. After a supervisor rushed over to turn off the machine, the employee immediately, and inexplicably, started it again. He was suspended pending a medical examination. He was then reinstated in May of 2006. That reinstatement was subject to a condition that the employee could be placed on medical leave, or suspended or terminated, if he put his safety or that of his co-workers at risk. During the period following such reinstatement, the employee on occasion, and without warning, became aggressive and violent.

In February of 2008, corporate restructuring led to the employee being asked to move from the afternoon to the day shift. He did so, but began to exhibit “unusual behaviour”. In July of 2008, he asked to go home, saying that he had seen his doctor and was told to take some time off work. The arbitrator stated that the employee’s request to take time off resulted in the termination of his “fourth work trial.”

The employee sought to return to work in late August of 2008 but was denied the right to return. He grieved but the grievance remained in abeyance and he remained off work. He re-asserted his right to return in March of 2010, and then filed a second grievance when he was not permitted to return. Both grievances were heard by arbitrator Hunter.

Medical reports from two different physicians were provided by the employee in September and December 2008. Both suggested that while the employee might be able to return to work, he would likely encounter similar difficulties at some point following his return.

At the outset of the hearing, the arbitrator ordered that the employee undergo an independent medical examination. The employee was required to select from one of three physicians whose names were provided by the employer.

Based on the report and testimony of the physician (an independent psychiatrist) who conducted the medical examination, the arbitrator concluded that the employee was not fit to return to work in 2008, and as of the date of the hearing, was still not fit to return to work. He accepted the psychiatrist’s view that it would be unsafe to the employee and his co-workers to allow him to return without restrictions. That view was conceded by the union in its closing submissions, with the union’s counsel stating that he had no idea what restrictions could be put in place to facilitate the employee’s safe return.

Arbitrator Hunter stated that the duty to accommodate was not applicable on the facts of this case. The employee had not been terminated but was on long term disability. The sole reason that he had not been permitted to return was that he was a danger to himself and other employees.

In other words, the duty to accommodate does not arise in this case. The Human Rights Code does not require an employer to bring an unsafe employee into the workplace. In fact, health and safety legislation preclude an employer from doing that.

Section 17(1) of the Code does not require an employer to bring back to the workplace an employee whose disability makes him a danger to himself and to others; an employee, moreover, who has repeatedly demonstrated that there is no job within the workplace that he can be safely assigned to.

The arbitrator stated that if he was wrong, and there was a duty to accommodate, then the evidence established that the employer had done so. Based on the authorities that he cited, he adopted a fourfold test for determining the limit of “reasonable” accommodation in a matter such as this:

  1. What is the likelihood that an injury to the grievor or a fellow employee might occur?
  2. Is any injury likely to be serious?
  3. Who bears the consequences of the risk?
  4. Is the risk acceptable?

In dismissing the grievances, the arbitrator stated:

I have concluded that returning the Grievor to the workplace would involve a substantial likelihood of risk, not just to the Grievor, but to his fellow … employees, and that the risk is unacceptable given the Grievor’s employment history and the multi-dimensional nature of his disability.

7. A union’s request for production of a broad range of documents was denied where its primary purpose was to challenge the “accuser’s” veracity. The arbitrator rejected the broad approach that had earlier been taken by arbitrator Shime (that is, a requirement to disclose all documents in a party’s possession or control except those which are privileged or clearly irrelevant). Adopting a more conservative approach, the arbitrator rejected all but one of the union’s production requests; primarily on the basis that they either constituted a “fishing expedition”; were totally devoid of any form of particularity; would have resulted in the disclosure of the names of other youth who were being held in the Centre; or lacked any arguable nexus between the information sought and the matter ultimately to be determined. Northern Youth Services (2011), 212 L.A.C. (4th) 318 (Carrier)

A youth services worker had been terminated after the employer subsequently came to learn that he had allegedly provided cigarettes and a lighter to a youth in custody. The information had been provided by the youth to another worker.

The union sought production and/or disclosure of a broad range of documents in the hope that they might contain some information that could be used to challenge the youth’s integrity or veracity. The arbitrator described the union’s requests as seeking “any information in the possession of the Employer which may assist in proving the Youth to be a liar or at least unreliable with respect to the information which he provided …”

Arbitrator Carrier characterized the information sought as not being “central to the proof of the merits of the case but to collateral matters the disclosure of which will serve neither to prove or disprove the event itself … While the credibility of both the Youth and Grievor may be central to the determination of the facts to be proven in this case, a detailed investigation of the character of either of them will in my view do little to advance the merits of this case in so far as whether or not the impugned conduct took place and, if so, whether or not, in all the circumstances, it warranted the termination of the Grievor.”

In terms of the scope of disclosure, arbitrator Carrier rejected the broad approach taken by arbitrator Shime in Toronto District School Board (2002), 109 L.A.C. (4th) 20, where he found that a party responding to a request for production was obligated to disclose all documents in its possession or control except those which are privileged or clearly irrelevant. Arbitrator Carrier stated that he preferred the approach of arbitrator Richardson in Capital District Health Authority (2008), 171 L.A.C. (4th) 93. There, arbitrator Richardson relied on the criteria articulated by arbitrator Knopf in West Park Hospital (1993), 37 L.A.C. (4th) 160, considered at page 289 of the Manual, and by arbitrator Outhouse in Maritime Telegraph and Telephone Company Limited (unreported, January 16, 1992). Arbitrator Richardson paraphrased the principles in the latter case as follows:

  1. a prehearing order must not be used to authorize a “fishing expedition” by one party into the files of another;
  2. strict relevancy is not the test – an element of discovery may be allowed;
  3. documents which are “arguably relevant” or “prima facie relevant” or “rationally linked” to the issues in dispute may be compelled;
  4. at the pre-hearing stage “one should err on the side of compelling production of documents which may prove not to be relevant or of little weight rather than permit the withholding of documents which may prove to be probative.”
  5. documents which might otherwise be compellable “may be excused from production if the arbitrator is satisfied that the prejudicial effect of disclosure would outweigh their probative value.”

Arbitrator Richardson also stated:

In my opinion a pre-hearing order can be made only with respect to particularized documents that are “arguably relevant” or “prima facie relevant” or ‘rationally linked” to the issues in dispute. The requirement that the documents be particularized is an important one if one is to avoid what might otherwise descend into a “fishing expedition” – a search not for evidence that supports a case but rather to see if one has a case at all …

Based on the foregoing considerations, arbitrator Carrier rejected all but one of the union’s production requests; primarily on the basis that they either constituted a “fishing expedition”; were totally devoid of any form of particularity; would have resulted in the disclosure of the names of other youth who were being held in the Centre; or lacked any arguable nexus between the information sought and the matter ultimately to be determined.

8. An arbitrator held that an employee who was accommodated in a former classification was entitled to be credited with classification seniority equivalent to his plant-wide seniority. This was done without considering whether that was necessary to effect a reasonable accommodation. As a consequence, the accommodated employee was vaulted from fourth to first in terms of seniority in the department to which he was returned. Of interest is the fact that it was plant wide rather than classification seniority that governed in instances of workplace reductions. London Transit Commission (2011), 213 L.A.C. (4th) 29 (Link)

The collective agreement provided for classification, departmental and plant-wide (or service) seniority. Classification and departmental seniority were not transferable, but were retained (and could subsequently be built upon) if an employee transferred out of and then back into his classification or department. Classification seniority generally governed in the case of vacation selection, work shift assignments, bidding for days off, and the assignment of work on statutory holidays. Departmental seniority was utilized for bidding for relief opportunities, while plant-wide or service seniority governed in establishing the length of an employee’s paid vacation and the ordering of workplace-wide reductions.

The employee had been employed in the same department for his entire tenure. He had approximately 26 years of both departmental and plant-wide or service seniority.

The employee began his employment in the classification of bus operator. After approximately six years in that classification, he became a full-time dispatcher. After 10 years in the dispatcher classification, he reverted back to his original position as a full-time bus operator. He spent a further nine years in that classification A job-related disability subsequently led to him being accommodated in the classification of full-time dispatcher. It was stated that his classification seniority as a dispatcher was 10 years and 36 days. Although not specifically stated, his classification seniority in the bus-operator position would have been in the neighbourhood of 15 or 16 years.

It was the employer’s position that the employee should be awarded his full service seniority (i.e., 26 years) in his new accommodated position as dispatcher. The union took the position that the employee should be credited with his 10 plus years of seniority in the dispatcher classification.

The arbitrator found that the seniority provisions of the collective agreement, which he characterized as constituting a bar to transferability of seniority, amounted to a prima facie discriminatory barrier to employees with a disability. He then applied the three–step Meiorin test and concluded that the employer’s position (i.e., crediting the employee with 26 years of seniority in the dispatcher classification), constituted a reasonable accommodation in the circumstances. In his view, “there was no human rights justification for a partial recognition of the employee’s seniority entitlement where a full entitlement would better serve the purposes of the legislation, unless a full recognition would result in undue hardship.”

In considering the union’s position that assigning full service seniority to the employee’s classification in dispatch would amount to an undue hardship, the arbitrator concluded that there was no evidence presented that such was the case:

To establish undue hardship, the party bearing the onus would have to demonstrate on persuasive evidence, not speculation, that the assignment of full seniority to the accommodated employee when crossing departmental or classification lines would result in a significant impact on the rights of others in the particular circumstances. Examples of this might include the direct loss of a job, the curtailment of an important benefit or entitlement, or the diminution of the realistic chances of a likely job opportunity among other possibilities. The available evidence in our present case falls short of this.

Arbitrator Lynk concluded that the transfer into the dispatch position, with 26 years of classification seniority, was a reasonable accommodation in the circumstances and would not cause the requisite undue hardship to the union or its members. In the result the employee was vaulted to the top of the seniority list in the Dispatch classification. Based on the union’s position, he would have ranked fourth out of the nine dispatchers on the dispatch classification seniority list. There was no evidence cited as to where he had ranked on the bus driver seniority classification prior to his transfer.

This decision bears critical consideration. This was not a situation where the employee’s transfer, from one bargaining unit to another, would have resulted in a loss of seniority protection or job security, for these matters were governed by plant-wide or service seniority. A reduction in classification seniority would be limited to a possible impact on vacation selection, shift assignment, days off, and assignment of work on statutory holidays. As arbitrator Lynk recognized, a loss of some seniority protection as it relates to these headings would not result in a significant reduction of rights. No consideration was given to the well-established principle that a disabled employee is not necessarily entitled to a perfect accommodation. Rather than consider that notion, the employee was credited with classification seniority that far outstripped his total accumulated seniority in either classification. Finally, the case suggests that the onus was on the union, rather the employer, to establish that the interference with the seniority provisions constituted undue hardship on the union and its members. However, the question might more appropriately have been whether the employee could have been accommodated, short of undue hardship, without the arbitrator having to interfere with the operation of the collective agreement. Viewed from a different perspective, the employee’s accommodation in the dispatch classification, with credit for earned classification seniority, would have constituted a reasonable (if not perfect) accommodation. That being the case, it is questionable for the arbitrator to have found as he did.

 

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