llness and Absenteeism.com - April/May 2016 Newsletter

 A. Feature Case:  An employer failed to properly accommodate a disabled employee whose position had been contracted out when it did not involve the union in investigating whether an accommodation was possible. This was held to constitute a breach of the procedural component of the duty to accommodate.

In Toronto (City), 2015 CanLII 66010 (ON LA) (Knopf), the employer significantly reduced the number of its employees by contracting out one half of its garbage collection service. The union asserted that it should have been involved in the resultant bumping process with regard to disabled employees and the grievor in particular. It contended that the employee, as a disabled worker, was not properly accommodated. The employer defended its actions by stating that the collective agreement did not provide for union participation in the bumping process and it noted that many disabled employees were able to successfully bump, both with and without the union’s involvement.

The grievor was working in a temporary accommodated position when his home position was contracted out. The collective agreement required the employer to place an affected employee in a vacant permanent position for which he or she was qualified. When the employer concluded that no such position existed, the employee was entitled to use his seniority rights to bump into a position for which he was qualified. However, the employer determined that the employee did not qualify to bump into any such positions. In making that determination, the employer did not consult with any of its manager’s to determine if there was a possibility of modifying any of the positions to meet the grievor’s restrictions.

In considering the respective obligations of the parties, the arbitrator stated:

Notwithstanding the overlap between [procedural and substantive] inquiries, it may often be useful, to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard …

Arbitrator Knopf stated that no cases require an employer to involve a union in all accommodation decisions. However, where no accommodation is offered or the accommodation being offered is not accepted, then the employer is obligated to involve the union:

… For the employer to claim that it has a right to deal with a disabled employee without the presence of the union is tantamount to individual bargaining with the bargaining unit member and denies the disabled employee the substantive right of representation in a matter which is of significant consequence.

 The arbitrator stated that “the duty to accommodate does not require an employer to hire or retain a person in a position that is unsuitable for him/her or to place someone where there is no reasonable prospect that the person can succeed … Further, an employee who is disabled is entitled to be treated the same as his/her co-workers, not better because of a disability. In that regard, skill and ability can be threshold requirements with respect to layoff and recall … It has also been found that when an employer has found suitable modified work for a disabled employee who is then subject to layoff, the employer is not obligated to embark on the same exercise all over again as part of the layoff process. In this regard, it was said “An employer’s duty to accommodate a worker does not extend to protecting him from being laid off when the workforce is being reduced. If there is no job being performed by a more junior employee than the disabled worker can do, he will be laid off …”

Arbitrator Knopf then considered whether a flawed accommodation process was sufficient, by itself, to find a breach of the duty to accommodate. She considered several decisions, including the Ontario Divisional Court’s decision in Adga Group Consultants Inc., where the Court awarded damages for a violation of both the substantive and procedural duty to accommodate. She noted that such decision was not followed by the Federal Court of Appeal in “Cruden”, where that Court held that there was no separate procedural duty to accommodate, and therefore no basis to award remedies once it was established that there was no discrimination or that accommodation would impose an undue hardship on the employer.

The arbitrator noted that in Ontario, Boards of Inquiry had split on this issue. She then came down on the side of there being a procedural obligation, stating that “the failure to meet the procedural dimensions of the duty to accommodate is a form of discrimination.” She stated;

It is correct that a violation of the “duty to accommodate” is not a violation of the Code.

Rather, from a substantive perspective, the correct way to frame the issue is that it is a violation of s. 5 of the Code to discriminate against an employee because of disability if that person’s disability-related needs can be accommodated without causing undue hardship to the employer. Similarly, from a procedural perspective and as expressed by the adjudicator in ADGA and upheld by the Divisional Court, it is a violation of s. 5 of the Code to discriminate against an employee because of disability by failing to take appropriate steps to assess the employee’s disability-related needs.

On the question of remedy, arbitrator Knopf stated:

Procedural discrimination in the context of a request for accommodation will generally result in an award of compensation for injury to dignity, feelings and self-respect. However, procedural discrimination may also result in other remedies being awarded, depending upon the particular circumstances of the individual case. The fundamental principle underlying the Tribunal’s remedial authority under the Code is, where a violation of the Code has been found, for the applicant to be put in the position he or she would have been in but for the discrimination. Where procedural discrimination has occurred, this Tribunal needs to consider, on a balance of probabilities, what position the applicant would more likely than not have been in had the procedural discrimination not occurred. In some cases, where the evidence does not support a finding of substantive discrimination, the evidence may support a finding that even if the accommodation request or medical documentation had been appropriately considered and assessed, the applicant’s position more likely than not would not have changed, and as a result there would be no basis to award further remedies. In other situations, however, even if substantive discrimination is not found, the evidence may establish that appropriately considering and assessing the accommodation request may have resulted in further dialogue between the parties that more likely than not would have put the applicant in a different position. In such cases, additional remedies may be appropriate, including potentially accommodation for lost income or even reinstatement.

On the larger policy issue, the arbitrator concluded that the Employer could not “refuse or fail to seek … the involvement of the Union with regard to a disabled employee who was facing layoff.”

Of course, there is no need to involve a union if an employer is able to arrange an appropriate accommodation for a disabled employee. However, when there is any question of finding or maintaining appropriate employment for an employee who becomes disabled due to illness or injury, a union has a critical role to play that cannot be ignored. If a suitable position is available that requires the Union’s cooperation, the union is required to not stand in the way of such an accommodation … This could take the form of agreeing to a waiver of a seniority or posting provision, agreeing to place the person outside of the bargaining unit, adjusting the regular hours of work, or motivating the cooperation of co-workers. Further, the case law points out that because the union has the exclusive right to represent employees and shares in the duty to accommodate, those responsibilities cannot be thwarted by an employer refusing to allow the union to assist a disabled employee in any aspect of his/her employment. [As one arbitrator has said], denying the union the right to deal with an individual employee without the presence of the union with regard to a search for modified work is tantamount to individual bargaining with the bargaining unit member and denies the employee the substantive right of representation, a matter that is of very significant consequence to that employee …

While it is clear that there is no contractual obligation to treat [the collective agreement process] as a joint process, the union cannot be excluded from assisting disabled employees involved in that process. The arbitral and Supreme Court’s case law makes it clear that unions share in the responsibility of accommodating disabled employees. That shared responsibility cannot be fulfilled without a union being allowed access to the accommodation process and the disabled employee. It therefore follows that an employer cannot claim that it has fulfilled its statutory or contractual duty with regard to a disabled employee when it has excluded a union from the accommodation inquiry and prevented an employee from having access to the union’s assistance.

The union’s policy grievance was allowed. The arbitrator concluded that there was insufficient evidence to determine whether the individual grievance should succeed, and as a consequence, she referred that matter back to the parties for them to begin the process of properly assessing whether the employee could be accommodated without undue hardship.

The arbitrator remained seized with regard to matters arising out this interim award.

The procedural obligation to accommodate a disabled employee and the union’s role in assisting with an accommodation are considered in sections 14:601 and 14:433 of the Illness and Absenteeism manual and its supplement

B.     Recent Decisions of General Interest

 1. An employee who alleged that that she suffered discrimination because of her pregnancy was required, at a minimum, to present evidence to satisfy the adjudicator that there was a connection between her pregnancy and her dismissal.

In Universal Staffing Inc., 2015 HRTO 1387 (CanLII) (Sanderson), the employee alleged that she suffered discrimination because of her sex, specifically pregnancy. The employer led evidence that in the twelve years of its existence, 13 children were born to staff members and that at least one employee had taken three maternity leaves. It contended that accommodating pregnancies and child care needs was not an issue and that there was no advantage in dismissing the employee before the start of her leave of absence.

The adjudicator began by addressing the onus of proof:

The applicant bears the legal onus of establishing discrimination on a balance of probabilities, i.e. that it is more probable than not that discrimination occurred. [He referenced Pieters, 2013 ONCA 396 (CanLII) where] the Court of Appeal stated that an applicant has the onus of establishing the following three elements to make out discrimination under the Code:

a.       That he or she is a member of a group protected by the Code;

b.       That he or she was subjected to adverse treatment; and

c.       That the Code ground was a factor in the alleged adverse treatment.

… The applicant … is required to do more than establish that her employer knew she was pregnant when she was dismissed. Rather … the applicant was required to present evidence that her pregnancy was a factor in the decision to terminate her employment in order to establish a Code violation.

In dismissing the application, the adjudicator commented that the employee had not presented any evidence that could form a proper basis for finding a connection between her pregnancy and her dismissal. Rather, the evidence was to the contrary. It established that the employer “accepted her pregnancy, made plans to address her departure on maternity leave and expected her to return to work following her leave. The timing of the decision to dismiss came several months after the applicant announced her pregnancy. This fact does not preclude a finding of discrimination, but it distinguishes this case from circumstances in which dismissal follows suspiciously shortly after the disclosure of an employee’s pregnancy …”

In addition, the employer “presented a credible, non-discriminatory explanation for the decision to dismiss her.”

The adjudicator appeared to place some significance on the fact that the employee’s testimony attempted to downplay and deflect the fact that she was not meeting the employer’s expectations, despite evidence to the contrary.

The issue of pregnancy-related discrimination is considered in section 13:500 of the Illness and Absenteeism manual and its supplement.

 2.  An employee who was terminated within two days of the employer discovering that he had undergone a heart assessment was able to establish, on a balance of probabilities, that he had a disability that constituted at least one factor in the employer’s decision to terminate his employment. 

In 8707774 Canada Inc., 2015 HRTO 1322 (CanLII) (Reaume), the employer discovered that a newly hired employee had been undergoing a heart assessment. The employee was terminated within two days of the discovery. The employer advised that the termination was attributable to it having realized that it had over-hired  staff in the opening of its new restaurant some seven weeks earlier.

The adjudicator accepted that, “on a balance of probabilities, the [employee] has and was perceived to have a medical condition which constitutes a disability under the Code and that this disability was a factor in the [employer’s] decision to terminate his employment:

The [employee] is not required to prove that his disability was the only or even the primary factor in his termination. The timing of his termination, which took place the day after the discussion with his employer about his heart monitor, combined with the fact that he received favourable reviews from [his supervisor] and was not advised of any concerns about his performance … are facts which are sufficient to establish, in the absence of evidence supporting an alternative explanation, that the [employee’s] disability was one factor in the decision to terminate him.

The employee had sought $5000 for compensation for injury to dignity, feelings and self-respect and six months lost income. The lost income period was found to be reasonable. In awarding the sum of $10,000 for injury to dignity, feelings and self-respect, the adjudicator noted that the employee was self-represented and was not aware of the range of damages available under the Code. The employee had indicated that he thought a $5000 award was fair in the circumstances and the adjudicator took that into account in awarding a sum on the lower end of the range for cases of this nature.

Establishing the existence of a prima facie case and awards of damages for discriminatory conduct are considered in sections 14:410 and 14:702 of the Illness and Absenteeism manual and its supplement.

 3. A public school division was found to have discriminated against a student when it failed to accommodate a number of the student’s disabilities, including his attention deficit hyperactivity disorder (ADHD).

In Toronto District School Board, 2015 HRTO 1622 (CanLII) (Nichols), a student’s litigation guardian filed a human rights complaint in which it alleged that the child’s school division had failed to accommodate his multiple disabilities which included learning disabilities, attention deficit hyperactivity disorder (ADHD) and mental health disabilities which primarily manifested themselves as anxiety and depression. The complaint was upheld, with the adjudicator ordering compensation for injury to dignity, feelings and self-respect in the amount of $35,000.

The issue of ADHD and damages for failure to accommodate an employee with such a disability are considered in sections 2:201 and 14:702 of the Illness and Absenteeism manual and its supplement.